Aadhaar 35071 2012 FullJudgement-568-1048 PDF

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO 494 OF 2012
JUSTICE K S PUTTASWAMY (RETD) & ANR ...PETITIONERS
Versus
UNION OF INDIA & ORS ...RESPONDENTS
WITH
T C (C) NO 151 OF 2013
T C (C) NO 152 OF 2013
W P (C) NO 833 OF 2013
W P (C) NO 829 OF 2013
T P (C) NO 1797 OF 2013
W P (C) NO 932 OF 2013
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T P (C) NO 1796 OF 2013
CONMT. PET. (C) NO 144 OF 2014
T P (C) NO 313 OF 2014
T P (C) NO 312 OF 2014
SLP (CRL) NO 2524 OF 2014
W P (C) NO 37 OF 2015
W P (C) NO 220 OF 2015
CONMT. PET. (C) NO 674 OF 2015 in W P (C) NO 829 OF 2013
T P (C) NO 921 OF 2015
W P (C) NO 231 OF 2016
W P (C) NO 797 OF 2016
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W P (C) NO 342 OF 2017
W P (C) NO 372 OF 2017
W P (C) NO 841 OF 2017
W P (C) NO 1058 OF 2017
W P (C) NO 966 OF 2017
W P (C) NO 1014 OF 2017
W P (C) NO 1002 OF 2017
W P (C) NO 1056 OF 2017
AND
WITH
CONMT. PET. (C) NO 34 OF 2018 in W P (C) NO 1014 OF 2017
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JUDGMENT
INDEX
A Introduction: technology, governance and freedom
B The Puttaswamy1 principles
B.I Origins: privacy as a natural right

B.2 Privacy as a constitutionally protected right : liberty and dignity
B.3 Contours of privacy
B.4 Informational privacy
B.5 Restricting the right to privacy
B.6 Legitimate state interests
C Submissions
C.I Petitioners’ submissions

C.2 Respondents’ submissions
D Architecture of Aadhaar: analysis of the legal framework
E Passage of Aadhaar Act as a Money Bill
E.I Judicial Review of the Speaker’s Decision

E.2 Aadhaar Act as a Money Bill
F Biometrics, Privacy and Aadhaar
F.I Increased use of biometric technology

F.2 Consent in the collection of biometric data
F.3 Position before the Aadhaar legislation
1 (2017) 10 SCC 1
4
F.4 Privacy Concerns in the Aadhaar Act
1. Consent during enrolment and authentication & the right to access
information under the Aadhaar Act
2. Extent of information disclosed during authentication & sharing of core
biometric information
3. Expansive scope of biometric information
4. Other concerns regarding the Aadhaar Act: Misconceptions regarding the
efficacy of biometric information
5. No access to biometric records in database
6. Biometric locking
7. Key takeaways
G Legitimate state aim
G.I Directive Principles

G.2 Development and freedom
G.3 Identity and Identification
H Proportionality
H.I Harmonising conflicting rights

H.2 Proportionality standard in Indian jurisprudence
H.3 Comparative jurisprudence
H.4 Aadhaar: The proportionality analysis
H.5 Dignity and financial exclusion
H.6 Constitutional validity of Section 139AA of the Income Tax Act 1961
H.7 Linking of SIM cards and Aadhaar numbers
I Money laundering rules
J Savings in Section 59
K Rule of law and violation of interim orders
L Conclusion
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PART A
Dr Dhananjaya Y Chandrachud, J
A Introduction: technology, governance and freedom
1 Technology and biometrics are recent entrants to litigation. Individually,
each presents specific claims: of technology as the great enabler; and of
biometrics as the unique identifier. As recombinant elements, they create as it
were, new genetic material. Combined together, they present unforeseen
challenges for governance in a digital age. Part of the reason for these
challenges is that our law evolved in a radically different age and time. The
law evolved instruments of governance in incremental stages. They were
suited to the social, political and economic context of the time. The forms of
expression which the law codified were developed when paper was
ubiquitous. The limits of paper allowed for a certain freedom: the freedom of
individuality and the liberty of being obscure. Governance with paper could
lapse into governance on paper. Technology has become a universal
language which straddles culture and language. It confronts institutions of
governance with new problems. Many of them have no ready answers.
2 Technology questions the assumptions which underlie our processes of
reasoning. It reshapes the dialogue between citizens and the state. Above all,
it tests the limits of the doctrines which democracies have evolved as a shield
which preserves the sanctity of the individual.
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PART A
3 In understanding the interface between governance, technology and
freedom, this case will set the course for the future. Our decision must
address the dialogue between technology and power. The decision will
analyse the extent to which technology has reconfigured the role of the state
and has the potential to reset the lines which mark off no-fly zones: areas
where the sanctity of the individual is inviolable. Our path will define our
commitment to limited government. Technology confronts the future of
freedom itself.
4 Granville Austin, the eminent scholar of the Indian Constitution had
prescient comments on the philosophy of the Indian Constitution. He found it
in three strands:
“The Constitution…may be summarized as having three

strands: protecting and enhancing national unity and integrity;
establishing the institutions and spirit of democracy; and
fostering a social revolution to better the mass of Indians...the
three strands are mutually dependent and inextricably
intertwined. Social revolution could not be sought or gained at
the expense of democracy. Nor could India be truly
democratic unless the social revolution had to establish a just
society. Without national unity, democracy would be
endangered and there would be little progress toward social
and economic reform. And without democracy and reform, the
nation would not hold together. With these three strands, the
framers had spun a seamless web. Undue strain on, or
slackness in any one strand would distort the web and risk its
destruction and, with it, the destruction of the nation.
Maintaining harmony between the strands predictably would
present those who later work the Constitution with great
difficulties…”2
2 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press (2003) at page 6
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PART A
These three strands are much like the polycentric web of which Lon Fuller has
spoken.3 A pull on one strand shakes the balance between the others. The
equilibrium between them preserves the equilibrium of the Constitution.
5 This Court has been tasked with adjudicating on the constitutional
validity of the Aadhaar project. The difficulties that Granville Austin had
predicted would arise in harmonising the strands of the “seamless web” are
manifested in the present case. This case speaks to the need to harmonise
the commitment to social welfare while safeguarding the fundamental values
of a liberal constitutional democracy.
6 To usher in a social revolution, India espoused the framework of a
welfare state. The Directive Principles are its allies. The state is mandated to
promote the welfare of its citizens by securing and protecting as effectively as
possible a social order in which there is social, economic and political justice.
Government plays a vital role in the social and economic upliftment of the
nation’s citizenry by espousing equitable distribution of resources and creating
equal opportunities. These are ideals that are meant to guide and govern
State action. The State’s commitment to improve welfare is manifested
through the measures and programmes which it pursues.
3 Lon L. Fuller and Kenneth I. Winston, The Forms and Limits of Adjudication, Harvard Law Review, Vol. 92,
(1978), at pages 353-409
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PART A
7 The Constitution of India incorporated a charter of human freedoms in
Part III and a vision of transformative governance in Part IV. Through its rights
jurisprudence, this Court has attempted to safeguard the rights in Part III and
to impart enforceability to at least some of the Part IV rights by reading them
into the former, as intrinsic to a constitutionally protected right to dignity. The
Directive Principles are a reminder of the positive duties which the state has to
its citizens. While social welfare is a foundational value, the Constitution is the
protector of fundamental human rights. In subserving both those ideals, it has
weaved a liberal political order where individual rights and freedoms are at the
heart of a democratic society. The Constitution seeks to fulfil its liberal values
by protecting equality, dignity, privacy, autonomy, expression and other
freedoms.
8 Two recent books have explored the complexities of human identity. In
“The Lies That Bind: Rethinking Identity”4, Kwame Anthony Appiah states that
a liberal constitutional democracy is not a fate but a project. He draws
inspiration from the Roman playwright Terence who observes: “I am human. I
think nothing human alien to me.” Francis Fukuyama, on the other hand has a
distinct nuance about identity. In “Identity: The Demand for Dignity and the
Politics of Enlightenment5, he writes about how nations can facilitate
“integrative national identities” based on liberal democratic values. Reviewing
the books, Anand Giridharadas noted that Fukuyama’s sense of identity is
4 Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity, Liveright Publishing (2018).
5 Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Enlightenment, Farrar, Straus and
Giroux (2018).
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PART A
“large enough to be inclusive but small enough to give people a real sense of
agency over their society.”6. Appiah and Fukuyama present two variants – for
Appiah it has a cosmopolitan and global nature while it is more integrated with
a nation state, for Fukuyama, though firmly rooted in a liberal constitutional
order.
9 India has participated in and benefited from the reconfiguring of
technology by the global community. We live in an age of information and are
witness to a technological revolution that pervades almost every aspect of our
lives. Redundancies and obsolescence are as ubiquitous as technology itself.
Technology is a great enabler. Technology can be harnessed by the State in
furthering access to justice and fostering good governance.
10 In an age symbolised by an information revolution, society is witnessing
a shift to a knowledge economy7. In a knowledge economy, growth is
dependent on the ‘quantity, quality, and accessibility’8 of information. The
quest for digital India must nonetheless be cognisant of the digital divide.
Access confronts serious impediments. Large swathes of the population have
little or no access to the internet or to the resources required for access to
information. With the growth of the knowledge economy, our constitutional
jurisprudence has expanded privacy rights. A digital nation must not submerge
6 Anand Giridharadas, ‘What is Identity?’, The New York Times, 27 August, 2018.
7 Peter F Drucker, The Age of Discontinuity: Guidelines to Our Changing Society, Harper & Row (1969).
Drucker’s book popularized the term ‘Knowledge Economy’.
8 ‘What is Knowledge Economy?’, IGI Global: Disseminator of Knowledge, available at:
https://www.igi-global.com/dictionary/indigenous-knowledges-and-knowledge-codification-in-the-knowledge-
economy/16327
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PART A
the identities of a digitised citizen. While data is the new oil, it still eludes the
life of the average citizen. If access to welfare entitlements is tagged to unique
data sets, skewed access to informational resources should not lead to
perpetuating the pre-existing inequalities of access to public resources. An
identification project that involves the collection of the biometric and
demographic information of 1.3 billion people9, creating the largest biometric
identity project in the world, must be scrutinized carefully to assess its
compliance with human rights.
11 Empowered by the technology that accompanied the advent of the
information age, the Aadhaar project was envisioned and born. The project is
a centralised nation-wide identification system based on biometric technology.
It aims to be a game changer in the delivery of welfare benefits through the
use of technology. The project seeks to facilitate de-duplication, prevent
revenue leakages and ensure a more cost and time efficient procedure for
identification. Conceptualised on the use of biometrics and authentication, the
Aadhaar identity card was originally introduced as a matter of voluntary
choice. It was made a requirement for state subsidies and benefits for which,
expenses are incurred from the Consolidated Fund of India. It was later
expanded to become necessary to avail of a host of other services. The
project is multifaceted and expansive. Perhaps no similar national identity
program exists in the world. The Aadhaar project has multifarious aspects, all
9 Krishnadas Rajagopal, ‘Aadhaar in numbers: key figures from UIDAI CEO’s presentation to the Supreme
Court’, The Hindu, (March 22, 2018). Aadhaar enrollment as of March 2018 stood at over 1 billion.
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PART A
of which have been the subject of a detailed challenge by the Petitioners.
They have been met with an equally strong defence from the government,
which has argued that the programme is indispensable to curb corruption,
fraud and black money.
12 The Aadhaar project raises two crucial questions: First, are there
competing interests between human rights and ‘welfare furthering technology’
in democratic societies? Can technologies which are held out to bring
opportunities for growth, also violate fundamental human freedoms? Second,
if the answer to the first is in the affirmative, how should the balance be struck
between these competing interests?
13 Efficiency is a significant facet of institutional governance. But
efficiencies can compromise dignity. When efficiency becomes a universal
mantra to steam-roll fundamental freedoms, there is a danger of a society
crossing the line which divides democracy from authoritarian cultures. At the
heart of the grounds on which the Aadhaar project has been challenged, lies
the issue of power. Our Constitution is a transformative document in many
ways. One of them is in defining and limiting the State’s powers, while
expanding the ambit of individual rights and liberties. It protects citizens from
totalitarian excesses and establishes order between the organs of the State,
between the State and citizens and between citizens. Most importantly, it
reaffirms the position of the individual as the core defining element of the
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PART A
polity. That is the justification to restrain power by empowering all citizens to
be authors of their destiny. According to the Petitioners, the technological
potential as well as the actual implementation of the Aadhaar project alters the
balance between the state and its citizens in this relational sphere and has the
potential to permanently redistribute power within the constitutional
framework.
14 As far as citizen-state relations are concerned, the Constitution was
framed to balance the rights of the individual against legitimate State interests.
Being transformative, it has to be interpreted to meet the needs of a changing
society. As the interpreter of the Constitution, it is the duty of this Court to be
vigilant against State action that threatens to upset the fine balance between
the power of the state and rights of citizens and to safeguard the liberties that
inhere in our citizens.
15 The present case involves issues that travel to the heart of our
constitutional structure as a democracy governed by the rule of law. Among
them is the scope of this Court’s power of judicial review. The Aadhaar
legislation was passed as a money bill in the Lok Sabha. Whether it was
permissible, in constitutional terms, to by-pass the Rajya Sabha, is the
question. The role of the Rajya Sabha in a bicameral legislative structure, the
limits of executive power when it affects fundamental rights and the duty of the
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PART A
state to abide by interim orders of this Court are matters which will fall for
analysis in the case.
16 The case is hence as much about the rule of law and institutional
governance. Accountability is a key facet of the rule of law. Professor
Upendra Baxi has remarked:
“The problem of human rights, in situations of mass poverty,

is thus one of redistribution, access and needs. In other
words, it is a problem of “development”, a process of planned
social change through continuing exercise of public power. As
there is no assurance that public power will always, or even in
most cases, be exercised in favour of the deprived and
dispossessed, an important conception of development itself
is accountability, by the wielders of public power, to the
people affected by it and people at large. Accountability is the
medium through which we can strike and maintain a balance
between the governors and the governed.”10
These are some of the unique challenges of this case. They must be analysed
in the context of our constitutional framework. The all-encompassing nature of
the Aadhaar project, its magnitude and the resultant impact on citizens’
fundamental rights, make it imperative to closely scrutinize the structure and
effect of the project. For this will determine the future of freedom.
10 Upendra Baxi, The Right To Be Human: Some Heresies, India International Centre Quarterly, Vol. 13, (1986).
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PART B
B The Puttaswamy11 principles
17 A unanimous verdict by a nine judge Bench declared privacy to be
constitutionally protected, as a facet of liberty, dignity and individual
autonomy. In a voluminous judgment, the Court traced the origins of privacy
and its content. The decision lays down the test of proportionality to evaluate
the constitutional validity of restrictions on the right to privacy.
18 The protection of privacy emerges both from its status as a natural right
inhering in every individual as well as its position as “a constitutionally
protected right”. As a constitutional protection, privacy traces itself to the
guarantee of life and personal liberty in Article 21 of the Constitution as well as
to other facets of freedom and dignity recognized and guaranteed by the
fundamental rights contained in Part III.
B.I Origins: privacy as a natural right
19 Puttaswamy holds that the right to privacy inheres in every individual
as a natural right. It is inalienable and attaches to every individual as a pre-
condition for being able to exercise their freedom. The judgment of four judges
(with which Justice Sanjay Kishan Kaul concurred) held :
“42. Privacy is a concomitant of the right of the individual to

exercise control over his or her personality. It finds an origin
11 Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC 1
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PART B
in the notion that there are certain rights which are

natural to or inherent in a human being. Natural rights are
inalienable because they are inseparable from the human
personality.”12 (Emphasis supplied)
“319. Life and personal liberty are not creations of the

Constitution. These rights are recognised by the
Constitution as inhering in each individual as an intrinsic
and inseparable part of the human element which dwells
within.”13 (Emphasis supplied)
In his concurring opinion, S A Bobde, J. opined:
“392…Privacy, with which we are here concerned, eminently

qualifies as an inalienable natural right, intimately
connected to two values whose protection is a matter of
universal moral agreement: the innate dignity and autonomy
of man.”14 (Emphasis supplied)
Similarly, in his concurring opinion, Nariman, J. opined:
“532…It was, therefore, argued before us that given the

international conventions referred to hereinabove and the fact
that this right inheres in every individual by virtue of his being
a human being, such right is not conferred by the Constitution
but is only recognized and given the status of being
fundamental. There is no doubt that the petitioners are
correct in this submission.”15
(Emphasis supplied)
In his concurring opinion, Abhay Manohar Sapre, J. opined:
“557. In my considered opinion, “right to privacy of any

individual” is essentially a natural right, which inheres in
every human being by birth…It is indeed inseparable and
inalienable from human being.”16
(Emphasis supplied)
12 Ibid, at page 365

14 Ibid, at pages 536-537
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PART B
The judgment authoritatively settles the position. While privacy is recognized
and protected by the Constitution as an intrinsic and inseparable part of life,
liberty and dignity, it inheres in every individual as a natural right.
B.2 Privacy as a constitutionally protected right : liberty and dignity
20 The judgment placed the individual at the centre of the constitutional
rights regime. The individual lies at the core of constitutional focus. The ideals
of justice, liberty, equality and fraternity animate the vision of securing a
dignified existence to the individual. The Court held that privacy attaches to
the person and not the place where it is associated. Holding that privacy
protects the autonomy of the individual and the right to make choices, the
judgment of four judges held:
“108….The individual is the focal point of the Constitution

because it is in the realisation of individual rights that the
collective well being of the community is determined.
Human dignity is an integral part of the Constitution.17
“266. Our Constitution places the individual at the

forefront of its focus, guaranteeing civil and political
rights in Part III and embodying an aspiration for
achieving socio-economic rights in Part IV.”
(Emphasis supplied)
It was held that privacy rests in every individual “irrespective of social class or
economic status” and that every person is entitled to the intimacy and
autonomy that privacy protects:
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PART B
“271...It is privacy as an intrinsic and core feature of life and

personal liberty which enables an individual to stand up
against a programme of forced sterilization. Then again, it is
privacy which is a powerful guarantee if the State were to
introduce compulsory drug trials of non-consenting men or
women. The sanctity of marriage, the liberty of
procreation, the choice of a family life and the dignity of
being are matters which concern every individual
irrespective of social strata or economic well being. The
pursuit of happiness is founded upon autonomy and
dignity. Both are essential attributes of privacy which
makes no distinction between the birth marks of
individuals.”18 (Emphasis supplied)
21 Recognizing that civil-political rights are not subservient to socio-
economic rights, the Court held that “conditions necessary for realizing or
fulfilling socio-economic rights do not postulate the subversion of political
freedom.”
“266...The refrain that the poor need no civil and political

rights and are concerned only with economic well-being has
been utilised through history to wreak the most egregious
violations of human rights. Above all, it must be realised that it
is the right to question, the right to scrutinize and the right to
dissent which enables an informed citizenry to scrutinize the
actions of government. Those who are governed are entitled
to question those who govern, about the discharge of their
constitutional duties including in the provision of socio-
economic welfare benefits. The power to scrutinize and to
reason enables the citizens of a democratic polity to make
informed decisions on basic issues which govern their
rights.19
267... Conditions of freedom and a vibrant assertion of civil

and political rights promote a constant review of the justness
of socio-economic programmes and of their effectiveness in
addressing deprivation and want. Scrutiny of public affairs is
founded upon the existence of freedom. Hence civil and
political rights and socio-economic rights are complementary
and not mutually exclusive.”20

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PART B
Significantly, the Court rejected the submission that there is a conflict between
civil-political rights and socio-economic rights. Both in the view of the Court
are an integral part of the constitutional vision of justice.
22 Privacy, it was held, reflects the right of the individual to exercise control
over his or her personality. This makes privacy the heart of human dignity and
liberty. Liberty and dignity are complementary constitutional entities. Privacy
was held to be integral to liberty. Privacy facilitates the realization of
constitutional freedoms. This Court held thus:
“119. To live is to live with dignity. The draftsmen of the

Constitution defined their vision of the society in which
constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is
dignity that it permeates the core of the rights guaranteed to
the individual by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence. Privacy
with its attendant values assures dignity to the individual and
it is only when life can be enjoyed with dignity can liberty be
of true substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and liberty is
intended to achieve.”21
127...The right to privacy is an element of human dignity. The

sanctity of privacy lies in its functional relationship with
dignity. Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to
make essential choices which affect the course of life. In
doing so privacy recognises that living a life of dignity is
essential for a human being to fulfil the liberties and freedoms
which are the cornerstone of the Constitution.”22

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PART B
23 The assurance of human dignity enhances the quality of life. The
“functional relationship” between privacy and dignity secures the “inner
recesses of the human personality from unwanted intrusion”. Privacy by
recognizing the autonomy of an individual, protects the right to make choices
essential to a dignified life. It thus enables the realization of constitutional
liberties and freedoms. It was held in the judgment:
“322. Privacy is the constitutional core of human dignity.

Privacy has both a normative and descriptive function. At a
normative level privacy sub-serves those eternal values upon
which the guarantees of life, liberty and freedom are founded.
At a descriptive level, privacy postulates a bundle of
entitlements and interests which lie at the foundation of
ordered liberty.23
298…Dignity cannot exist without privacy. Both reside within

the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of
choice and self-determination.”24
24 Privacy is founded on the autonomy of the individual. The ability to
make choices is at the core of the human personality. Its inviolable nature is
manifested in the ability to make intimate decisions about oneself with a
legitimate expectation of privacy. Privacy guarantees constitutional protection
to all aspects of personhood. Privacy was held to be an “essential condition”
for the exercise of most freedoms. As such, given that privacy and liberty are
intertwined, privacy is necessary for the exercise of liberty. Bobde J, in his
separate opinion held that:

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PART B
“409...Liberty and privacy are integrally connected in a way

that privacy is often the basic condition necessary for
exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of being
performed at all and in many cases with dignity unless an
individual is left alone or is otherwise empowered to ensure
his or her privacy.25
411... Both dignity and privacy are intimately intertwined and

are natural conditions for the birth and death of individuals,
and for many significant events in life between these events.
Necessarily, then, the right of privacy is an integral part of
both ‘life’ and ‘personal liberty’ under Article 21, and is
intended to enable the rights bearer to develop her potential
to the fullest extent made possible only in consonance with
the constitutional values expressed in the Preamble as well
as across Part III.”26
25 Apart from being a natural law right, the right to privacy was held to be a
constitutionally protected right flowing from Article 21. Privacy is an
indispensable element of the right to life and personal liberty under Article 21
and as a constitutional value which is embodied in the fundamental freedoms
embedded in Part III of the Constitution. Tracing out the course of precedent
in Indian jurisprudence over the last four decades, the view of four judges
holds:
“103. The right to privacy has been traced in the decisions

which have been rendered over more than four decades to
the guarantee of life and personal liberty in Article 21 and the
freedoms set out in Article 19.”27
“320. Privacy is a constitutionally protected right which

emerges primarily from the guarantee of life and personal
liberty in Article 21 of the Constitution…”28

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PART B
In a similar vein, Chelameswar J. while concurring with the view of four judges
held:
“375. The right to privacy is certainly one of the core

freedoms which is to be defended. It is part of liberty within
the meaning of that expression in Article 21.”29
26 Being indispensable to dignity and liberty, and essential to the exercise
of freedoms aimed at the self-realization of every individual, privacy was held
to be a common theme running across the freedoms and rights guaranteed
not just by Article 21, but all of Part III of the Constitution. Bobde J. in his
separate opinion held that:
“406. It is not possible to truncate or isolate the basic freedom

to do an activity in seclusion from the freedom to do the
activity itself. The right to claim a basic condition like privacy
in which guaranteed fundamental rights can be exercised
must itself be regarded as a fundamental right. Privacy, thus,
constitutes the basic, irreducible condition necessary for
the exercise of ‘personal liberty’ and freedoms
guaranteed by the Constitution. It is the inarticulate
major premise in Part III of the Constitution.30
415. Privacy is the necessary condition precedent to the

enjoyment of any of the guarantees in Part III. As a result,
when it is claimed by rights bearers before constitutional
courts, a right to privacy may be situated not only in
Article 21, but also simultaneously in any of the other
guarantees in Part III. In the current state of things, Articles
19(1), 20(3), 25, 28 and 29 are all rights helped up and made
meaningful by the exercise of privacy.”
(Emphasis supplied)

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PART B
B.3 Contours of privacy
27 Privacy has been held to have distinct connotations including (i) spatial
control; (ii) decisional autonomy; and (iii) informational control. The judgment
of four judges held that:
“248. Spatial control denotes the creation of private spaces.

Decisional autonomy comprehends intimate personal choices
such as those governing reproduction as well as choices
expressed in public such as faith or modes of dress.
Informational control empowers the individual to use privacy
as a shield to retain personal control over information
pertaining to the person.”
Similarly, Nariman J. in his separate opinion held:
“521. In the Indian context, a fundamental right to privacy

would cover at least the following three aspects:
• Privacy that involves the person i.e. when there is
some invasion by the State of a person’s rights relatable to
his physical body, such as the right to move freely;
• Informational privacy which does not deal with a
person’s body but deals with a person’s mind, and therefore
recognizes that an individual may have control over the
dissemination of material that is personal to him.
Unauthorised use of such information may, therefore lead to
infringement of this right; and
• The privacy of choice, which protects an individual’s
autonomy over fundamental personal choices.”31
28 However, it was held that this is not an exhaustive formulation of
entitlements. In recording its conclusions, the opinion of four judges held:
“324. This Court has not embarked upon an exhaustive

enumeration or a catalogue of entitlements or interests
comprised in the right to privacy. The Constitution must
evolve with the felt necessities of time to meet the
challenges thrown up in a democratic order governed by
the rule of law. The meaning of the Constitution cannot be
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PART B
frozen on the perspectives present when it was adopted.

Technological change has given rise to concerns which were
not present seven decades ago and the rapid growth of
technology may render obsolescent many notions of the
present. Hence the interpretation of the Constitution must
be resilient and flexible to allow future generations to
adapt its content bearing in mind its basic or essential
features.”32 (Emphasis supplied)
Additionally, Bobde J., in his separate opinion held that the right to privacy
may also inhere in other parts of the Constitution beyond those specified in
the judgment:
“415. Therefore, privacy is the necessary condition precedent

to the enjoyment of any of the guarantees in Part III. As a
result, when it is claimed by rights bearers before
constitutional courts, a right to privacy may be situated not
only in Article 21, but also simultaneously in any of the other
guarantees in Part III. In the current state of things, Articles
19(1), 20(3), 25, 28 and 29 are all rights helped up and made
meaningful by the exercise of privacy. This is not an
exhaustive list. Future developments in technology and
social ordering may well reveal that there are yet more
constitutional sites in which a privacy right inheres that
are not at present evident to us.”33 (Emphasis supplied)
B.4 Informational privacy
29 Puttaswamy held that informational privacy is an essential aspect of
the fundamental right to privacy. It protects an individual’s free, personal
conception of the ‘self.’ Justice Nariman held that informational privacy “deals
with a person’s mind, and therefore recognizes that an individual may have
control over the dissemination of material that is personal to him”. Any
unauthorised use of such information may therefore lead to infringement of the

24
PART B
right to privacy. In his concurring judgment, Justice Kaul held that
informational privacy provides the right to an individual “to disseminate certain
personal information for limited purposes alone”. Kaul J. in his separate
opinion held:
“620…The boundaries that people establish from others in

society are not only physical but also informational. There
are different kinds of boundaries in respect to different relations.
Privacy assists in preventing awkward social situations and
reducing social frictions. Most of the information about
individuals can fall under the phrase “none of your business”. …
An individual has the right to control one’s life while submitting
personal data for various facilities and services. It is but
essential that the individual knows as to what the data is
being used for with the ability to correct and amend it. The
hallmark of freedom in a democracy is having the
autonomy and control over our lives which becomes
impossible, if important decisions are made in secret
without our awareness or participation.”34 (Emphasis
supplied)
30 A reasonable expectation of privacy requires that data collection does
not violate the autonomy of an individual. The judgment of four judges noted
the centrality of consent in a data protection regime. This was also highlighted
in the separate concurring opinion of Justice Kaul:
“625. Every individual should have a right to be able to

exercise control over his/her own life and image as portrayed
to the world and to control commercial use of his/her identity.
This also means that an individual may be permitted to
prevent others from using his image, name and other aspects
of his/her personal life and identity for commercial purposes
without his/her consent.”35

25
PART B
Consent, transparency and control over information are crucial to
informational privacy. In this structure, Court has principally focused on the
“individual” as central to our jurisprudence.
B.5 Restricting the right to privacy
31 There is an inherent importance of giving a constitutional status to
privacy. Justice Nariman dealt with this:
“490...The recognition of such right in the fundamental rights

chapter of the Constitution is only a recognition that such right
exists notwithstanding the shifting sands of majority
governments. Statutes may protect fundamental rights; they
may also infringe them. In case any existing statute or any
statute to be made in the future is an infringement of the
inalienable right to privacy, this Court would then be required
to test such statute against such fundamental right and if it is
found that there is an infringement of such right, without any
countervailing societal or public interest, it would be the duty
of this Court to declare such legislation to be void as
offending the fundamental right to privacy.”36
A constitutional right may embody positive and negative ‘aspects’. They
signify mandates. At an affirmative level, they emphasise the content and
diversity of our liberties. As a ‘negative’, they impose restraints on the state
and limit the power of the state to intrude upon the area of personal freedom.
‘Negative’ in this sense reflects a restraint: the fundamental rights are a
restraining influence on the authority of power. In addition to keeping itself
within the bounds of its authority, the state may have a positive obligation to
perform. Rights such as informational privacy and data protection mandate
26
PART B
that the state must bring into being a viable legal regime which recognizes,
respects, protects and enforces informational privacy. Informational privacy
requires the state to protect it by adopting positive steps to safeguard its
cluster of entitlements. The right to informational privacy is not only vertical
(asserted and protected against state actors) but horizontal as well.
Informational privacy requires legal protection because the individual cannot
be left to an unregulated market place. Access to and exploitation of individual
personal data – whether by state or non-state entities – must be governed by
a legal regime built around the principles of consent, transparency and
individual control over data at all times.
32 Privacy, being an intrinsic component of the right to life and personal
liberty, it was held that the limitations which operate on those rights, under
Article 21, would operate on the right to privacy. Any restriction on the right to
privacy would therefore be subjected to strict constitutional scrutiny. The
constitutional requirements for testing the validity of any encroachment on
privacy were dealt with in the judgment as follows:
“325… In the context of Article 21 an invasion of privacy must

be justified on the basis of a law which stipulates a procedure
which is fair, just and reasonable. The law must also be valid
with reference to the encroachment on life and personal
liberty under Article 21. An invasion of life or personal liberty
must meet the three-fold requirement of (i) legality, which
postulates the existence of law; (ii) need, defined in terms of a
legitimate state aim; and (iii) proportionality which ensures a
rational nexus between the objects and the means adopted to
achieve them.”37
27
PART B
These three-fold requirements emerge from the procedural and content-based
mandate of Article 21. The first requirement is the enactment of a valid law,
which justifies an encroachment on privacy. The second requirement of a
legitimate State aim ensures that the law enacted to restrict privacy is
constitutionally reasonable and does not suffer from manifest arbitrariness.
The third requirement of proportionality ensures that the nature and quality of
the encroachment on the right to privacy is not disproportionate to the purpose
of the law. Proportionality requires the State to justify that the means which
are adopted by the legislature would encroach upon the right to privacy only to
the minimum degree necessary to achieve its legitimate interest.
Justice Nariman held thus:
“495…Statutory provisions that deal with aspects of privacy

would continue to be tested on the ground that they would
violate the fundamental right to privacy, and would not be
struck down, if it is found on a balancing test that the social or
public interest and the reasonableness of the restrictions
would outweigh the particular aspect of privacy claimed. If this
is so, then statutes which would enable the State to
contractually obtain information about persons would pass
muster in given circumstances, provided they safeguard the
individual right to privacy as well… in pursuance of a statutory
requirement, if certain details need to be given for the
concerned statutory purpose, then such details would
certainly affect the right to privacy, but would on a balance,
pass muster as the State action concerned has sufficient
inbuilt safeguards to protect this right – viz. the fact that such
information cannot be disseminated to anyone else, save on
compelling grounds of public interest.”38
33 While five judges of the Court adopted the “proportionality” standard to
test a law infringing privacy, Justice Chelameswar discussed the need to
28
PART B
apply of a “compelling state interest” standard, describing it as the “highest
standard of scrutiny that a court can adopt”. Describing Article 21 as the
“bedrock” of privacy, the learned Judge held:
“379…If the spirit of liberty permeates every claim of privacy,

it is difficult if not impossible to imagine that any standard of
limitation, other than the one under Article 21 applies.39
380. The just, fair and reasonable standard of review under

Article 21 needs no elaboration. It has also most commonly
been used in cases dealing with a privacy claim hitherto.
Gobind resorted to the compelling state interest standard in
addition to the Article 21 reasonableness enquiry. From the
United States where the terminology of ‘compelling state
interest’ originated, a strict standard of scrutiny comprises two
things- a ‘compelling state interest’ and a requirement of
‘narrow tailoring’ (narrow tailoring means that the law must be
narrowly framed to achieve the objective). As a term,
compelling state interest does not have definite contours in
the US. Hence, it is critical that this standard be adopted with
some clarity as to when and in what types of privacy claims it
is to be used. Only in privacy claims which deserve the
strictest scrutiny is the standard of compelling State
interest to be used. As for others, the just, fair and
reasonable standard under Article 21 will apply. When
the compelling State interest standard is to be employed
must depend upon the context of concrete cases.”40
(Emphasis supplied)
Justice Chelameswar’s view accepts the ‘fair, just and reasonable’ standard in
the generality of cases, carving an exception in cases of a certain category
where a heightened scrutiny must apply. Those categories of exception are
not spelt out. They would, as the judge opined, be evolved on a case by case
basis.

29
PART B
34 The Bench of nine judges had held that the contours of privacy exist
across the spectrum of constitutionally protected freedoms. Privacy was held
to be a necessary condition precedent to the enjoyment of the guarantees in
Part III. This has enhanced the scope of the protection guaranteed to privacy.
Consequently, privacy infringements will generally have to satisfy the other
tests applicable apart from those under Article 21. In his concurring opinion,
Justice S A Bobde held:
“427. Once it is established that privacy imbues every

constitutional freedom with its efficacy and that it can be
located in each of them, it must follow that interference
with it by the state must be tested against whichever one
or more Part III guarantees whose enjoyment is curtailed.
As a result, privacy violations will usually have to answer to
tests in addition to the one applicable to Article 21, Such a
view would be wholly consistent with R. C. Cooper v. Union of
India.”41 (Emphasis supplied)
Any attempt by the State to restrict privacy must therefore meet the
constitutional requirements prescribed for each provision of Part III, which the
restriction infringes. In his concurring opinion, Justice Nariman held thus:
“488... Every State intrusion into privacy interests which deals

with the physical body or the dissemination of information
personal to an individual or personal choices relating to the
individual would be subjected to the balancing test
prescribed under the fundamental right that it infringes
depending upon where the privacy interest claimed is
founded.”42 (Emphasis supplied)
Justice Nariman further held:
“526…when it comes to restrictions on this right, the drill

of various Articles to which the right relates must be
scrupulously followed. For example, if the restraint on
privacy is over fundamental personal choices that an

30
PART B
individual is to make, State action can be restrained under

Article 21 read with Article 14 if it is arbitrary and
unreasonable; and under Article 21 read with Article 19(1)(a)
only if it relates to the subjects mentioned in Article 19(2) and
the tests laid down by this Court for such legislation or
subordinate legislation to pass muster under the said Article.
Each of the tests evolved by this Court, qua legislation or
executive action, under Article 21 read with Article 14; or
Article 21 read with Article 19(1) (a) in the aforesaid examples
must be met in order that State action must pass muster.”43
(Emphasis supplied)
The constitutional guarantee on protection of privacy was placed on a sure
foundation. Since emanations of privacy are traceable to various rights
guaranteed by Part III, a law or executive action which encroaches on privacy
must meet the requirements of the constitutionally permissible restriction in
relation to each of the fundamental rights where the claim is founded.
B.6 Legitimate state interests
35 Recognizing that the right to privacy is not absolute, the judgment
recognizes that legitimate state interests may be a valid ground for the
curtailment of the right subject to the tests laid down for the protection of
rights. Justice Nariman held:
“526...This right is subject to reasonable regulations made by

the State to protect legitimate State interests or public
interest. However, when it comes to restrictions on this right,
the drill of various Articles to which the right relates must be
scrupulously followed.”44

31
PART B
Recognizing that a legitimate state aim is a pre-requisite for any restriction on
the right, the judgment of four judges held:
“310…the requirement of a need, in terms of a legitimate

state aim, ensures that the nature and content of the law
which imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which is a guarantee
against arbitrary state action. The pursuit of a legitimate state
aim ensures that the law does not suffer from manifest
arbitrariness.”
36 The judgment sets out illustrations of legitimate State interests. The
provisos to various fundamental rights were held to be an obvious restriction
on the right to privacy. It was held that the State does have a legitimate
interest in collection and storage of private information when it is related to
security of the nation. Apart from the concerns of national security, an
important State interest, it was held, lies in ensuring that scarce public
resources reach the beneficiaries for whom they are intended. It was held
thus:
“311...Allocation of resources for human development is

coupled with a legitimate concern that the utilisation of
resources should not be siphoned away for extraneous
purposes… Data mining with the object of ensuring that
resources are properly deployed to legitimate beneficiaries is
a valid ground for the state to insist on the collection of
authentic data.”45
Prevention and investigation of crime, protection of the revenue and public
health were demarcated as being part of other legitimate aims of the State.
The judgment places an obligation on the State to ensure that while its
legitimate interests are duly preserved the data which the State collects is
32
PART B
used only for the legitimate purposes of the State and is “not to be utilised
unauthorizedly for extraneous purposes.”
37 However, reiterating that every facet of privacy is to be protected, the
judgment held that there should be a careful balance between individual
interests and legitimate concerns of the state. Justice Nariman, in his separate
opinion held:
“488. Every State intrusion into privacy interests which deals

with the physical body or the dissemination of information
personal to an individual or personal choices relating to the
individual would be subjected to the balancing test prescribed
under the fundamental right that it infringes depending upon
where the privacy interest claimed is founded.”46
38 The judgment in Puttaswamy recognizes the right to privacy as a
constitutional guarantee protected as intrinsic to the freedoms guaranteed by
Part III of the Constitution. Privacy is integral to the realization of human
dignity and liberty. A society which protects privacy, values the worth of
individual self-realization. For it is in the abyss of solitude that the innermost
recesses of the mind find solace to explore within and beyond.
33
PART C
C Submissions
C.I Petitioners’ submissions
The petitioners challenge the constitutional validity of:
a. The Aadhaar programme that operated between 28.01.2009 till the coming
into force of the Aadhaar Act, 2016 on 12.07.2016;
b. The Aadhaar Act, 2016 (and alternatively certain provisions of the Act);
c. Regulations framed under the Aadhaar Act, 2016;
d. Elements of the Aadhaar programme that continue to operate without the
cover of the Act;
e. Subordinate legislation including the Money Laundering (Amendment)
Rules, 2017;
f. All notifications issued under Section 7 of the Aadhaar Act in so far as they
make Aadhaar mandatory for availing of certain benefits, services and
subsidies; and
g. Actions which made Aadhaar mandatory even where the activity is not
covered by Section 7 of the Act.
Mr Shyam Divan, learned Senior Counsel submitted that the Aadhaar project
and Act are ultra vires on the following grounds:
i The project and the Act violate the fundamental right to privacy;
34
PART C
ii The architecture of the Aadhaar project enables pervasive surveillance by
the State;
iii The fundamental constitutional feature of a ‘limited government’ - which is
the sovereignty of the people and limited government authority- is changed
completely post Aadhaar and reverses the relationship between the citizen
and the State;
iv Due to the unreliability of biometric technology, there are authentication
failures which lead to the exclusion of individuals from welfare schemes;
v A citizen or resident in a democratic society has a choice to identify herself
through different modes in the course of her interactions generally in
society, as well as in her interactions with the State. Mandating
identification by only one mode is highly intrusive, excessive and
disproportionate and violates Articles 14, 19 and 21; and
vi The procedure adopted by the State before and after the enactment of the
law is violative of Articles 14 and 21 because:
a. There is no informed consent at the time of enrolment;
b. UIDAI does not have control over the enrolling agencies and
requesting entities that collect sensitive personal information which
facilitates capture, storage and misuse of information; and
35
PART C
c. The data collected and uploaded into the CIDR is not verified by any
government official designated by UIDAI.
Mr Kapil Sibal, learned Senior Counsel submits that the provisions of the
Aadhaar Act are unconstitutional for the following reasons:
i The aggregation and concentration of sensitive personal information under
the Aadhaar Act is impermissible because it is capable of being used to
affect every aspect of an individual’s personal, professional, religious and
social life. It is therefore violative of the individual freedoms guaranteed
under Articles 19(1)(a) to 19(1)(g), 21 and 25 of the Constitution;
ii Such aggregation of information is also an infringement of informational
privacy, which has been recognised in Puttaswamy;
iii Making Aadhaar mandatory unreasonably deprives citizens of basic rights
and entitlements and infringes Article 21 of the Constitution;
iv Use of Aadhaar as an exclusive identity for availing of subsidies, benefits
and services is disproportionate and violates Article 14 for being arbitrary
and discriminatory against persons otherwise entitled to such benefits;
v Collection and storage of data with the government under the Aadhaar Act
is violative of the right to protection from self-incrimination, and the right to
36
PART C
privacy and personal dignity and bodily Integrity envisaged under Article
20(3) and Article 21 of the Constitution;
vi To prescribe that Aadhaar is the only identity that enables a person to
receive entitlements is contrary to the right of an individual under the
Constitution to identify the person through other prescribed documentation
such as electoral rolls or passports;
vii Section 7 of the Aadhaar Act is applicable only to such subsidies, benefits
and services, for which the entire expenditure is directly incurred from the
Consolidated Fund of India or from which the entire receipts directly form
part of the Consolidated Fund of India;
viii Use of Aadhaar as the sole identity will not prevent pilferage and diversion
of funds and subsidies, as faulty identification is only one of the factors that
contributes to it; and
ix The Aadhaar project conditions the grant of essential benefits upon the
surrender of individual rights.
Mr Gopal Subramanium, learned Senior Counsel, made the following
submissions:
37
PART C
i The Aadhaar project violates dignity under Article 21 of the Constitution as
recognised in the judgments- in Puttaswamy, NALSA47 and
Subramanian Swamy48;
ii The Aadhaar project is unconstitutional as it seeks a waiver of
fundamental rights;
iii The Aadhaar project violates the guarantees of substantive and
procedural reasonableness under Articles 14,19 and 21;
iv Aadhaar perpetrates exclusion from social security schemes and is
therefore discriminatory under Article 14;
v The Aadhaar Act lacks legitimacy in its object in so far as it validates a
breach of fundamental rights retrospectively;
vi Rights and entitlements conferred under the Constitution cannot be based
on algorithmic probabilities which UIDAI cannot control;
vii No consequence is prescribed for non-authentication under the Aadhaar
Act;
viii The Aadhaar Act violates Part IX of the Constitution, which provides for
decentralisation (to Panchayats), while the Aadhaar scheme strikes at the
federal structure of the Constitution; and
47 (2014) 5 SCC 438

48 (2016) 7 SCC 221
38
PART C
ix Breaches under the Aadhaar Act cannot be cured.
Mr Arvind Datar, learned Senior Counsel has submitted:
i Rule 9 of the PMLA (Second Amendment) Rules, 2017 which requires
mandatory linking of Aadhaar with bank accounts is unconstitutional and
violates Articles 14, 19(1)(g), 21 and 300A of the Constitution, Sections 3,
7 and 51 of the Aadhaar Act, and is also ultra vires of the provisions of
the PMLA Act, 2002 on the following grounds:
a. Under the impugned amended Rules, linkage of Aadhaar numbers to
bank accounts is mandatory and persons not enrolling for Aadhaar
cannot operate a bank account, which violates the spirit of Article 14 in
entirety in so far it arbitrarily metes out unequal treatment based on
unreasonable classification;
b The impugned Rules are violative of Article 19(1)(g) as the Rules refer
to companies, firms, trusts, etc., whereas the Aadhaar Act is only to
establish identity of “individuals”;
c Non-operation of a bank account, even for a temporary period, leads
to deprivation of an individual's property and therefore constitutes a
violation under Article 300A of the Constitution, which provides that
deprivation can be done only by primary legislation; and
39
PART C
d The Rule has no nexus to the object of the PMLA Act, as the Act has
no provision to make bank accounts non-operational;
ii Section 139AA of the Income Tax Act, 1961 is liable to be struck down as
violative of Articles 14, 21 and 19(g) of the Constitution;
iii The decision in Binoy Viswam v Union of India49 requires re-
consideration in view of the nine judge Bench decision in Puttaswamy;
iv In view of serious deficiencies in the Aadhaar Act, there is a need for
guidelines under Article 142 to protect inter alia, the right to privacy and to
implement the mandate of the nine judge Bench in Puttaswamy;
v If the Aadhaar project is not struck down, it should be confined only for
identification or authentication of persons who are entitled to subsidies,
benefits and services for which expenditure is incurred from the
Consolidated Fund of India;
vi Sections 2(g), 2(j) 7, 57 and 59 of the Aadhaar Act violate Articles 14, 21
and 300A of the Constitution; and
vii PMLA Rule 9 is arbitrary as it is contrary to the RBI Master Circular
(issued in 2013), which provided a list of documents that were to be
treated as ‘identity proof’, in relation to proof of name and proof of
residence.
49(2017) 7 SCC 59
40
PART C
Mr P Chidambaram, learned Senior Counsel argued that the Aadhaar Act
could not have been passed as a Money Bill. Thus, he submitted:
i The only difference between financial bills and money bills is the term
“only” in Article 110 of the Constitution which implies that the scope of
money bills is narrower than the scope of financial bills and provisions
relating to money bills must thus be construed strictly;
ii The Aadhaar Act, which was passed as a money bill, should be struck
down since many of its provisions such as Section 57 have no relation to
the nature of a Money Bill and bear no nexus to the Consolidated Fund of
India;
iii Since Money Bills can only be introduced in the Lok Sabha, on account of
the curtailment of the powers of the Rajya Sabha and the President, the
relevant provisions must be accorded a strict interpretation;
iv While Article 110(3) provides that the decision of the Speaker of the Lok
Sabha as to whether a Bill is a ‘Money Bill’ shall be final, the finality is
only with regard to the Parliament and does not exclude judicial review;
and
v Since the legislative procedure is illegal and the power of the Rajya
Sabha has been circumvented to disallow legislative scrutiny of the
41
PART C
Aadhaar bill, provisions of the Act cannot be severed to save the Act and
the Act is liable to be struck down as a whole by the Court.
Mr KV Vishwanathan, learned Senior Counsel made the following
submissions:
i All acts done prior to the passage of the Act are void ab initio and are not
saved or validated by Section 59. In any event, Section 59 is invalid;
ii Collection, storage and use of data under the Aadhaar project and Act
are invalid for the following reasons:
a. The Aadhaar Act and the surrounding infrastructure has made the
possession of Aadhaar de facto mandatory;
b. Compulsory collection of identity information violates various facets of
the right to privacy - bodily privacy, informational privacy and
decisional autonomy;
c. The Act is unconstitutional since it collects the identity information of
children between 5-18 years without parental consent;
d. Centralised storage of identity information and the unduly long period
of retention of transaction data and authentication records is
disproportionate;
42
PART C
e. The Act and Regulations preclude Aadhaar number holders from
accessing or correcting their identity information stored on the CIDR;
and
f. The Act and Regulations lack safeguards to secure sensitive personal
data.
iii Services like health related services, and those related to food, pensions
and daily wages claimed under Section 7 of the Act have been denied
because of biometric failure. Biometric infrastructure operates on a
probabilistic system, which cannot be ‘one hundred percent infallible’.
Thus, the State needs to take steps to prevent the denial of benefits by
adopting alternate methods for verification of identity. This is absent at
present, resulting in a violation of Articles 14 & 21;
iv No provision is made for a hearing against omission and deactivation of
the Aadhaar number, which violates the principles of natural justice; and
v Sections 2(g), 2(j), 2(k) and 23(2) of the Aadhaar Act suffer from
excessive delegation and the allied regulations are vague, manifestly
arbitrary and unreasonable.
Mr Anand Grover, learned Senior Counsel has submitted thus:
43
PART C
i The Aadhaar project extends far beyond the scope of the Aadhaar Act
with no procedural safeguards. Hence it violates Article 21 in as much as
it is without the support and sanction of law. The data collected is
unauthorised, excessive and being illegally shared;
ii The use of biometric technology to establish identity is uncertain,
unproven and unreliable leading to exclusion and a violation of Articles 14
and 21;
iii The lack of security in the Aadhaar project violates the right to privacy
under Article 21;
iv Excessive powers have been delegated to the UIDAI through the
Aadhaar Act; and
v Sections 33(2) and 57 of the Act are vague, overbroad and
constitutionally invalid.
Ms Meenakshi Arora, learned Senior Counsel contended that:
i The general and indiscriminate retention of personal data, including meta-
data, and the ensuing possibility of surveillance by the State has a chilling
effect on fundamental rights like the freedom of speech and expression,
privacy, and dignity;
44
PART C
ii Making Aadhaar the sole means of identification for various services
impinges upon dignity as it amounts to requiring a license for the exercise
of fundamental rights; and
iii The Aadhaar project does not contain any specific provisions for data
protection, apart from a mere general obligation on UIDAI, which is a
violation of the obligation of the State to ensure that the right to life,
liberty, dignity and privacy of every individual is not breached under Part
III of the Constitution.
Mr Sajjan Poovayya, learned Senior Counsel has urged the following
submissions:
i The Aadhaar Act fails to satisfy the constitutional test of a just, fair and
reasonable law;
ii Maintenance of Aadhaar records by the State under Section 32 is an
unwarranted intrusion by the State;
iii Use of personal information under Section 33 is an unwarranted intrusion
by the State;
iv Section 57 of the Act is contrary to the principle of purpose limitation; and
45
PART C
v Sections 2(g) and 2(j), the proviso to Section 3(1), Section 23(2)(g) and
Section 23(2)(n) read with Section 54(2)(l), and Section 29(4) of the Act
suffer from the vice of excessive delegation.
Mr CU Singh, learned Senior Counsel, argued that the rights of the child are
violated through the Aadhaar project. A child has no right to give consent or to
enter into a contract. A child in India, under law, has no power or right to bind
herself to anything, to consent or enter into contracts. In this background,
there is no compelling state interest to mandate Aadhaar for children. The
fundamental right of a child to education cannot be made subject to production
of Aadhaar. These requirements are not only contrary to domestic legislation
protecting the rights of children but also against India’s international
obligations. Learned counsel also spoke of the violation of the rights of
homeless people who are denied benefits due to the lack of a fixed abode.
Mr Sanjay Hegde, learned Senior Counsel has urged that since there is no
‘essential practice’ involved, exemptions must be allowed from the mandatory
nature of the Aadhaar Act on the grounds of freedom of conscience under
Article 25 of the Constitution.
Ms Jayna Kothari, learned Counsel arguing on behalf of an intervenor
organization for transgender persons and sexual minorities urged that the
46
PART C
Aadhaar Act discriminates against sexual minorities. Aadhaar Regulations
require demographic information. The enrolment form has a third gender, but
there is no uniformity across the board, and the documents that have to be
produced to get an Aadhaar card do not always have that option. Aadhaar is
being made mandatory for almost everything but transgender persons cannot
get an Aadhaar because they do not have the gender identity documents that
Aadhaar requires. This non-recognition of gender identity leads to denial of
benefits which is violative of both Articles 14 and 21.
It has also been argued before us in an intervention application that denial of
Aadhaar to Non-Resident Indians leads to discrimination when NRIs seek to
avail of basic services in India.
C.2 Respondents’ submissions
Mr KK Venugopal, Learned Attorney General for India, has submitted thus:
i. For the period prior to coming into force of the Aadhaar Act, because of
the interim orders passed by the SC, obtaining an Aadhaar number or
enrollment number was voluntary, and hence there was no violation of
any right;
ii. Section 59 of the Aadhaar Act protects all actions taken from the period
between 2010 till the passage of the Aadhaar Act in 2016;
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PART C
iii. The judgments in MP Sharma and Kharak Singh being those of 8 and 6
judges respectively, holding that the right to privacy is not a fundamental
right, judgments of smaller benches delivered during the period upto
Puttaswamy would be per incuriam. Hence, the State need not have
proceeded on the basis that a law was required for the purpose of getting
an Aadhaar number or an enrolment number. As a result, the
administrative actions taken would be valid as well as the receipt of
benefits and subsidies by the beneficiaries;
iv. Subsequent to the Aadhaar Act, the petitioners would have to establish
that one or more of the tests laid down by the nine judge bench in
Puttaswamy render the invasion of privacy resulting from the Aadhaar
Act unconstitutional. The tests laid down in Puttaswamy have been
satisfied and hence the Aadhaar Act is not unconstitutional for the
following reasons:
a. The first condition in regard to the existence of a law has been
satisfied;
b. Legitimate state interests such as preventing the dissipation of social
welfare benefits, prevention of money laundering, black money and
tax evasion, and protection of national security are satisfied through
the Act;
48
PART C
c. The Aadhaar Act satisfies the test of proportionality by ensuring that a
“rational nexus” exists between the objects of the Act and the means
adopted to achieve its objects; and
d. For the purpose of testing legitimate State interest and proportionality,
the Court must take note of the fact that each one of the subsidies and
benefits under Section 7 is traceable to rights under Article 21 of the
Constitution - such as the right to live with human dignity, the right to
food, right to shelter, right to employment, right to medical care and
education. If these rights are juxtaposed with the right to privacy, the
former will prevail over the latter.
v. The Aadhaar Act was validly passed as a Money Bill on the following
grounds:
a. The term ‘targeted delivery of subsidies’ contemplates an expenditure of
funds from the Consolidated Fund of India, which brings the Aadhaar
Act within the purview of a Money Bill under Art. 110 of the Constitution;
b. Sections 7, 24, 25 and the Preamble of the Act also support its
classification as a Money Bill;
c. The Aadhaar Act has ancillary provisions, but they are related to the
pith and substance of the legislation which is the targeted delivery of
subsidies and benefits; and
d. Section 57 of the Act is saved by Article 110 (1) (g) of the Constitution as
it is a standalone provision and even if a Bill is not covered under
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clauses (a) to (f) of Article110(1), it can still be covered under Article110
(1) (g).
Mr Tushar Mehta, learned Additional Solicitor General, submitted:
i. Section 139AA of the Income Tax Act, was examined in Binoy Viswam
in the context of Article 19 and fulfills the three tests laid down under
Puttaswamy as well as the test of manifest arbitrariness laid down in
Shayara Bano v Union of India50;
ii. The demographic information that is required for Aadhaar enrollment is
already submitted while obtaining a PAN card and therefore individuals
do not have a legitimate interest in withholding information;
iii. Linking Aadhaar to PAN is in public interest on the following grounds:
a. The State has a legitimate interest in curbing the menace of black
money, money laundering and tax evasion, often facilitated by
duplicate PAN cards, and the linking of Aadhaar to the PAN card will
ensure that one person holds only one PAN Card, thereby curbing
these economic offences;
b. Aadhaar-PAN linking is in public interest and satisfies the test of
proportionality and reasonableness;
50 (2017) 9 SCC 1
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c. The individual interest gives way to a larger public interest and a
statutory provision furthering state interest will take precedence over
fundamental rights;
d. The Court must not interfere with the Legislature’s wisdom unless the
statutory measure is shockingly disproportionate to the object sought
to be achieved;
e. India is a signatory to various international treaties under which it has
obligations to take action to curb the menace of black money and
money laundering in pursuance of which measures including the
amendments to inter alia the Income Tax Act and the PMLA Act and
Rules thereunder, have been brought about by the legislature;
f. Statutory provisions under Aadhaar Act and Income Tax Act are distinct
and standalone. Moreover, the validity of one provision cannot be
examined in the light of the other;
g. Ascribing a (mandatory or voluntary) character to the provisions of a
statute is Parliament’s prerogative and cannot be questioned by
courts; and
h. Rule 9 of the amended PMLA Rules that mandates furnishing of an
Aadhaar number to open a bank account is not ultra vires the Aadhaar
Act. Similarly, the Rule that an existing bank account will become non-
operational if not linked with Aadhaar within six months is not a
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PART C
penalty but a consequence to render the accounts of money
launderers non-operational.
Mr Rakesh Dwivedi, learned Senior Counsel, has submitted:
i. The right to privacy exists when there is a reasonable expectation of
privacy. However, this reasonable expectation of privacy differs from one
dataset to another since the Aadhaar Act draws a distinction between
demographic information, optional demographic information (eg. mobile
number), core biometric information (fingerprints and iris scans) and
biometric information such as photographs;
ii. Alternatively, the applicability of Article 21 has to be confined and limited
to core biometric information;
iii. Fundamental rights are not absolute and can be restricted if permitted
specifically. Article 21 expressly envisages deprivation by laws which
seek to carry out legitimate objectives and are reasonable and
proportionate;
iv. The Aadhaar Act does not cause exclusion because if authentication fails
after multiple attempts, then the subsidies, benefits and services, can be
availed of by proving the possession of an Aadhaar number, either by
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PART C
producing the Aadhaar card or by producing the receipt of the application
for enrolment and producing the enrolment ID number;
v. Section 7 of the Aadhaar Act protects the right to human dignity
recognized by Article 21 of the Constitution by providing services,
benefits and subsidies. The Aadhaar Act is a welfare scheme in
pursuance of the State’s obligation to respect the fundamental rights to
life and personal liberty; to ensure justice (social, political and economic)
and to eliminate inequality (Article 14) with a view to ameliorate the lot of
the poor and the Dalits;
vi. Socio-economic rights must be read into Part III of the Constitution since
civil and political rights cannot be enjoyed without strengthening socio -
economic rights;
vii. A welfare State has a duty to ensure that each citizen has access at least
to the basic necessities of life. The idea of a socialist state under a
mandate to secure justice- social, economic and political - will be
completely illusory if it fails to secure for its citizens the basic
necessities in life. There cannot be any dignity for those who suffer
starvation, subjugation, deprivation and marginalization and those who
are compelled to do work which is intrinsically below human dignity;
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PART C
viii. The Aadhaar number does not convert individuals to numbers. The
Aadhaar number is necessary for authentication and it is solely used for
that purpose. The petitioners have conflated the concepts of identity and
identification. Authentication through a number is merely a technological
requirement which does not alter the identity of an individual;
ix. Even if there is a conflict between the right to privacy and the right to food
and shelter, the Aadhaar Act strikes a fair balance. The Aadhaar Act
ensures human dignity and the right to life and liberty, hence there would
be no reasonable expectation of privacy and autonomy;
x. The requirement to obtain an Aadhaar number under the Aadhaar Act
does not reflect a lack of trust in citizens. Authentication by the State
does not presume that all its citizens are dishonest. The provisions of the
Aadhaar Act are merely regulatory in nature - similar to the process of
frisking at airports or other offices - since there is no effective method to
ensure targeted delivery;
xi. The “least intrusive test” is not applicable in the present case. The
requirement that the least intrusive means of achieving the State object
must be adopted, has been rejected by Indian courts in a catena of
decisions as it involves a value judgment and second guessing the
wisdom of the legislature. Such a test violates the separation of powers
between the legislature and the judiciary;
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PART C
xii. Even assuming that the ‘least intrusive method’ test applies, the exercise
of determining the least intrusive method of identification is a technical
exercise and cannot be undertaken in a court of law;
xiii. The Petitioners who have furnished smartcards as an alternative to the
Aadhaar card, have not established that smartcards are less intrusive
than the Aadhaar card authentication process;
xiv. The ‘strict scrutiny test’ does not apply to the Aadhaar Act. That test is
conceptualised in the United States, to be only applied to ‘suspect
classifications’;
xv. Section 7 of the Aadhaar Act does not involve any waiver of fundamental
rights;
xvi. There can be no assumption of mala fide against the government or the
legislature. A mere possibility of abuse is not a ground to invalidate the
Aadhaar Act;
xvii. Through Section 57, Parliament intended to make the use of the Aadhaar
number available for other purposes due to the liberalization and
privatization of the economy in areas earlier occupied by the government
and public sector. Many private corporate bodies are operating parallel to
and in competition with the public sector such as in banking, insurance,
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PART C
defence, and health. These are core sectors absolutely essential for
national integrity, to the national economy and the life of people;
xviii. Sections 2(g), and (j) read with Section 54(2)(a) and Section 54(1) do not
suffer from excessive delegation of power to UIDAI and there are
sufficient guidelines coupled with restrictions. The regulation making
power of the Authority under the Act is limited by the use of the
expression ‘such other biological attribute’ which will be interpreted
ejusdem generis with the categories of information mentioned before
namely, fingerprints and iris scan. These categories have certain
characteristics: firstly, they do not contain genetic information; secondly,
they are non-intrusive; thirdly, apart from carrying out authentication they
do not reveal any other information of the individual; fourthly, these are
modes of identification used for identifying a person even without digital
technology; fifthly, they are capable of being used for instantaneous
digital authentication; and sixthly, they are biological attributes enabling
digital authentication. The addition of biological attributes, under Section
54, must mandatorily be laid before the Parliament under Section 55. This
is an additional check on the regulation making power of UIDAI;
xix. Under Section 2(k), which defines demographic information, certain
sensitive categories of information such as ‘race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history’ of
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PART C
the person are excluded. The term ‘other relevant information’ has to be
construed ejusdem generis and would have to be necessarily
demographic in nature as contrasted with biometric information;
xx. Aadhaar is necessary, as 3% of India’s GDP amounting to trillions of
rupees is allocated by Governments towards subsidies, scholarships,
pensions, education, food and other welfare programmes. But
approximately half of if does not reach the intended beneficiaries.
Aadhaar is necessary for fixing this problem as no other identification
document is widely and commonly possessed by the residents of the
country and most of the other identity documents do not enjoy the quality
of portability;
xxi. The enrolment and authentication processes under the Aadhaar Act are
strongly regulated so that the data is secure;
xxii. The security of the CIDR is also ensured through adequate measures and
safeguards;
xxiii. The Aadhaar Act ensures that UIDAI has control over the requesting
entity during the authentication process;
xxiv. Enrolment Regulations ensure that the requirement of informed consent
of individuals is fulfilled while securing the Aadhaar card in the following
ways:
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PART C
a. Firstly, the resident is given an opportunity of verifying his or her
information for accuracy before uploading;
b. Secondly, the details and the supporting documents are provided by
the resident, or an introducer (in specific cases);
c. Thirdly, the enrolling agency is obliged to inform the individual about
the manner in which the information shall be used, the nature of
recipients with whom the information is to be shared during
authentication; and the existence of a right to access information, the
procedure for making request for such access and details of the
person/ department to whom a request can be made; and
d. Fourthly, the uploading of information is done in the presence of the
individual.
xxv. When an individual makes a choice to enter into a relational sphere then
his or her choice as to mode of identification would automatically get
restricted on account of the autonomy of the individuals or institution with
whom they wish to relate. This is more so where the individual seeks
employment, service, subsidy or benefits;
xxvi. The Central government has the power to direct the linking of Aadhaar
card, with SIM card, as it is proportional to the object sought to be
achieved in the interest of national security;
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PART C
xxvii. Regarding the process of authentication and metadata retained under
the Act, it is submitted:
a. The only purpose of the Aadhaar project is authentication and there is
no power under the Act to analyze data;
b. The Aadhaar Act does not involve big data or learning algorithms. It
merely utilizes a matching algorithm for the purpose of authentication;
c. Metadata contemplated is process or technical metadata and does not
reveal anything about the individual. Section 2(d) of the Act defines
“authentication record” to mean the record of the time of
authentication, identity of the RE and the response provided by the
Authority”, and the relevant authentication regulation, Regulation 26,
does not go beyond the scope of Section 2(d) of the Act;
d. Moreover, Regulation 26 and Section 32(3) of the Act prohibit the
Authority from collecting or storing any information about the purpose
of authentication; and
e. Only limited technical metadata is required to be stored in an effort to
exercise control over REs by way of audits.
xxviii. Regarding the security of the Aadhaar data, it is submitted:
a. The provisions of the Information Technology Act, 2000 and the
punitive measures provided there are made applicable to Aadhaar
data under Section 30 of the Aadhaar Act; and
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b. Anyone attempting to gain unauthorized access to the CIDR faces
stringent punishment, including imprisonment upto 10 years.
xxix. On the control exercised by the Authority over the Requesting Entities
(RE), the following was urged before the Court:
a. The standard of control exercised by the Authority on the Requesting
Entities is ‘fair and reasonable’ as laid down under Article 21 of the
Constitution;
b. This control includes requirements that the RE’s procure the
fingerprint device from vendors controlled by the Authority, with the
Authority also providing the hardware and software of the device. The
device is subject to quality checks, and must be certified by the
Authority before being used by the RE. The Authority also takes
measures to ensure that data is sent to it in an encrypted form;
c. The license is given to the RE from the Authority only after an audit of
the RE is conducted, and the audit report is approved; and
d. The data collected by these REs is segregated and there exists no
way of aggregating this data. During authentication requests, the full
identity information of the individual will never be transmitted back to
the REs by the Authority as there exists a statutory bar from sharing
Biometric information under Sections 29 (1) (a) and 29(4) of the Act.
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xxx. UIDAI has entered into licensing agreements with foreign biometric
solution providers (BSP) for software. Even though the source code of the
software is retained by the BSP as it constitutes their intellectual property,
the data in the server rooms is secure as the software operates
automatically and the biometric data is stored offline. There is no
opportunity available to the BSP to extract data as they have no access
to it;
xxxi. Prior to the enactment of the Aadhaar Act, the Aadhaar project was
governed by the provisions of the Information Technology Act, 2000.
Section 72A of the Information Technology Act, 2000 provides for
punishment for disclosure of information in breach of law or contract;
xxxii. The architecture of the Aadhaar Act does not enable any real possibility,
proximate or remote, of mass surveillance in real time by the State;
xxxiii. The giving of identity information and undergoing authentication has no
direct and inevitable effect on Article 19(1)(a). Alternatively, even if Article
19(1)(a) is attracted, Article 19(2) would protect Section 7 of the Aadhaar
Act as it has a direct and proximate nexus to public order and security of
the State;
xxxiv. In response to the argument that the requirements of Aadhaar number
and authentication for benefits, services and subsidies would be ultra
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vires Article 243-G and items 11, 12, 16, 17, 23, 25 and 28 of the XIth
Schedule, it is submitted that the Panchayats get only such powers as
are given to it by the legislature of the State. Article 243-G is merely
enabling. There is no compulsion upon the State to endow the
Panchayats with powers relating to the items specified in the XIth
Schedule;
xxxv. On the validity and purpose of Section 57, it is urged:
a. Section 57 is not an enabling provision. It merely provides, as it states,
that the provisions of the Act would not prevent the use of Aadhaar for
other purposes;
b. However, Section 57 imposes a limitation on any such use for other
purposes, that the use must be sanctioned by any law in force or any
contract;
c. Another limitation is presented by the proviso to Section 57, which
says that the use of the Aadhaar number shall be subject to the
procedure and obligations under Section 8 and Chapter VI, which
would necessarily also subject it to the operation of Chapter VII
(dealing with Offences & Penalties) of the Act;
d. Under Section 57, the State, a body corporate or any other person
cannot become Requesting Entities unless the limitations provided for
under Section 57 are complied with;
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e. Section 57 imposes limitations, and the use is backed by
authentication, protection of information and punitive measures;
f. The expressions ‘pursuant to any law or any contract’, and ‘to this
effect’- necessarily entail that where the State makes a law or any
body corporate enters into a contract, the law or contract should be
prior in point of time to the making of any application for becoming a
Requesting Entity or a Sub-Authentication User Agency under
Regulation 12 of the Authentication Regulations; and
g. A large number of small service providers simply cannot become
Requesting Entities under Section 57, as they will not meet the
rigorous standard demanded by the eligibility conditions which are
prescribed by the Regulations to become Authentication User
Agencies (AUA)/ KYC User Agencies (KUA). Therefore, this provision
does not create a situation whereby the common man is required to
undergo authentication in all activities.
xxxvi. The Aadhaar Act is not exclusionary but inclusionary since it provides
all citizens the bare necessities for a dignified existence;
xxxvii. Having the option to opt-out is not a constitutional requirement.
Mr Neeraj Kishan Kaul, learned Senior Counsel, made the following
submissions:
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i. Aadhaar is a speedy and reliable tool for identification and authentication
and there is no reason to hold it invalid;
ii. Private entities and AUAs/KUAs that have built their businesses around it
should be allowed to use Aadhaar authentication services;
iii. Section 57 is an enabling provision and private players should be given
the choice to use the Aadhaar authentication services as a tool for
verification if there is a consensus between private players’ and their
customers;
iv. Aadhaar authentication has benefited women in villages and migrants and
increased the reach of microfinance institutions, thus reducing predatory
financing; and
v. A statute cannot be struck down on the ground that there is scope for
misuse.
Mr Jayant Bhushan, learned Senior Counsel appearing for the Reserve Bank
of India urged the following submissions before the Court:
i. RBI, in exercise of its powers under the Banking Regulation Act, 1949
and Rule 9 of the PMLA Rules, 2005 issued an amended Master Circular
on April 20, 2018 which mandates that Aadhaar has to be submitted to a
Reporting Entity. This circular conforms with the PMLA rules;
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ii. Rule 9(14) of the PMLA Rules provides that the Regulator- the RBI in this
case, lay down guidelines incorporating the requirements of sub-rules
9(1)-(13), which would include enhanced or simplified measures to verify
identity; and
iii. The requirement of submission of Aadhaar to the RE is in exercise of this
power under Rule 9(14).
Mr Gopal Sankarnarayanan, learned counsel, has submitted:
i. The Aadhaar Act as a whole does not violate the fundamental right to
privacy;
ii. The factors that save the Aadhaar Act from failing the proportionality test
are (a) Voluntariness to subject one ’s identity information to obtain
the Aadhaar ; (b) Informed consent when such identity information is
utilized; and (c) A draw on the Consolidated Fund of India;
iii. Right to identity is a fundamental right as a part of the right to dignity,
which is being realized by the Aadhaar Act;
iv. The right to identity is also recognized under India’s international
obligations under instruments such as the UDHR and ICCPR;
v. In view of the large scale enrolments that have already taken place and
the expenditure incurred by the Government out of public funds, it would
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PART C
be in overarching public interest to give Section 59 full effect. If this were
not done, the only avenue available to the Government would be to
undertake the mammoth enrolment task all over again under a new
regime, affording only a pyrrhic victory to the Petitioners, while there
would be substantial revenue losses to the Government and
deprivation of beneficial schemes to those eligible, in the meanwhile;
vi. Certain provisions of the Aadhaar Act have to be struck down or read
down so that the Act as a whole can continue to serve its essential
purpose - namely Sections 47, Section 8(4) and Section 29(2) of the Act;
and
vii. Section 139AA of the Income Tax Act, 1961 violates Article 14 and 21 of
the Constitution.
Mr Zoheb Hossain, learned Counsel, made the following submissions:
i. The right to privacy cannot be asserted vicariously on behalf of others in
a representative capacity in a Public Interest Litigation, because unlike
other constitutional rights, right to privacy is a personal right. No Section 7
beneficiary has claimed a violation of their right to privacy despite the
pendency of the petitions for 6 years before this Court and therefore, the
Petitioners' challenge, in a representative capacity, to section 7 on the
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ground of a violation of the right to privacy of third parties is not
maintainable;
ii. There is no increased threat to privacy due to Aadhaar at the level of
requesting entities (RE) for the following reasons:
a. REs are already in possession of personal information of individuals
and inclusion of Aadhaar does not in any manner increase the threat
to privacy;
b. Any information disclosed by REs will not be on account of Aadhaar
and will have to be dealt with under domain specific legislations, or a
data protection regime or agreements between the REs and their
customers; and
c. REs have data of their own customers and not of other REs’
customers, so there is no possibility of surveillance.
iii. Safeguards against disclosure of information in the Aadhaar Act are
superior to the safeguards laid down in the PUCL case51. Sections 8, 28
and 29 along with Chapter VII which deals with Offences and Penalties,
provide for protection of information and Section 33 lays down a strict
procedure for disclosure. Even though the Aadhaar Act is not required to
meet the same standard as laid down in PUCL, the safeguards in the Act
are not only adequate with regard to identity information and
authentication records, but far exceed the safeguards laid down PUCL;
51 (2011) 14 SCC 331
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iv. The petitioners cannot contend that Section 33(2) of the Aadhaar Act
goes against the principles of natural justice and is disproportionate (as it
does not define the term “national security”) for the following reasons:
a. What is in the interest of “national security” is not a question of law but
that of policy lying in the executive domain; and
b. Principles of natural justice cannot be observed strictly in a situation
implicating national security. In such cases, it is the duty of the court to
read into and provide for statutory exclusion.
v. The laws, which are under challenge, are a part of a concerted scheme to
promote redistributive justice and ensure substantive equality, in
furtherance of Articles 14, 38, 39B and 39C. These laws ensure a more
transparent and a cleaner system, root out revenue leakages and evasion
of taxes, thereby giving genuine beneficiaries their rightful share in
subsidies;
vi. The object of the Aadhaar Act, contrary to what the petitioners have
argued, is totally unrelated to suppression of freedom of speech and any
incidental effect, if at all, would not implicate the right under Article
19(1)(a);
vii. The petitioners cannot contend that Section 47 of the Aadhaar Act is
arbitrary or unreasonable for the following reasons:
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a. The offences and penalties under the Act are intended to maintain the
purity of data of the Aadhaar number holder and the integrity of the
CIDR, which are integral in achieving the object of the Act;
b. Enrolment, storage of data in CIDR, and authentications are so vast
and inherently technical that any breach of the provisions, can be
effectively dealt with by the UIDAI;
c. The individual has not been left remediless, as he/she can make a
complaint to the UIDAI directly or through the grievance redressal
centre [Regulation 32 of the Aadhaar (Enrolment and Update)
Regulations, 2016]. After a complaint has been made, the UIDAI
would be obliged to examine the complaint and accordingly lodge a
complaint in a Court in terms of Section 47 of the Aadhaar Act;
d. Section 56 of the Aadhaar Act makes it clear that application of other
laws, like the IT Act, is not barred.
viii. Aadhaar must be made mandatory under Section 7 of the Aadhaar Act for
the following reasons:
a. Because of the involvement of biometrics, it is almost impossible for
one person to obtain two Aadhaar numbers. This will help in checking
the entry of fake and duplicate beneficiaries into any welfare scheme;
b. Other methods which were employed over the last 70 years to check
duplication, siphoning of money in welfare schemes, large-scale tax
evasion, generation of black money, and appearance and re-
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appearance of duplicates, have turned out to be futile. If Aadhaar is
made voluntary, the same problems are likely to creep back into the
system; and
c. The State is bound to deploy the best technology available to it to
ensure proper allocation of resources as there is a constitutional
mandate upon the State under Article 14 to efficiently utilize its
resources.
ix. There is no conflict between the Aadhaar Act and the Income Tax Act as
they are both stand alone laws and their scope of operation is different;
x. Through the Aadhaar Act, the State is furthering the following obligations
under Part III and Part IV of the Constitution and international obligations:
a. The State has a positive obligation for securing socio-economic rights
like the basic right to food, shelter and livelihood of people arising out
of Article 21, even though it is worded negatively;
b. The Supreme Court has observed that civil & political rights and socio-
economic rights in India are placed on the same pedestal [PUCL].
Aadhaar is a means of achieving the latter set of rights. The
proportionality analysis would therefore require a balancing of rights in
this context;
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c. Articles 38, 39(b), (c), (e), (f), 41, 43, 47 and 51(c) impose a
constitutional mandate on the State to ensure effective and efficient
utilization of public resources;
d. The State is the trustee of public resources towards people, and
inaction of the State to plug the continuous leakage of public
resources and revenues would violate both, the principle of non-
arbitrariness and reasonableness envisaged by Article 14 as well as
the constitutional doctrine of public trust; and
e. The creation of Aadhaar infrastructure and enactment of the Aadhaar
Act is a step towards the government pursuing India’s international
obligations under the ICESCR.
xi. While testing proportionality, reasonableness of a restriction has to be
determined in an objective manner from the standpoint of the interests of
the general public and not from the perspective of an individual right
bearer claiming invasion52; and
xii. With regard to the alleged conflict between Section 29(2) of the Aadhaar
Act and Section 4(b)(xii) of the RTI Act, the former cannot be struck down
as unconstitutional for the following reasons:
52 Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7 SCC 353.
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a. A provision can be struck down only if it is in violation of the
Constitution or if the legislature lacks competence, not on the ground
that it is in conflict with another law;
b. In any case, the obligations of public authorities under both these
provisions are different, as the public authority under the RTI Act can
publish the details of beneficiaries from the existing database and the
information received by the UIDAI is not required to be shared or
displayed publicly. However, if any information is displayed publicly, it
can be challenged by an aggrieved person on the ground of privacy
which would be completely unrelated to the present challenge;
c. The two laws operate in their distinct fields and there is no conflict
between them; and
d. A conflict between two statutes is required to be reconciled through
harmonious construction. However, since there is no conflict between
these two laws, there is no need for harmonious construction.
D Architecture of Aadhaar: analysis of the legal framework
39 The architecture of the Aadhaar Act envisages the creation of a unique
identity for residents on the basis of demographic and biometric information.
The Act envisages a process of identification by which the unique identity
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PART D
assigned to each individual is verified with the demographic and biometric
information pertaining to that individual which is stored in a centralised
repository of data known as the Central Identities Data Repository (CIDR). The
former part of the legislative design is implemented by its regulatory provisions
governing enrolment53 of individuals who would be allotted a unique identity
number. The latter part of the legislative design consists of the process of
‘authentication’.
40 In order to facilitate an understanding of the key aspects of the law,
Section 2 provides a dictionary of meanings. ‘Aadhaar number’ is defined in
Section 2(a) as the identification number issued to the individual under sub-
section (3) of Section 3. The individual to whom an Aadhaar number is issued
is described in Section 2(b) as the ‘Aadhaar number holder’. The expression
‘authentication’ is defined in Section 2(c) thus:
“(c) “Authentication” means the process by which the

Aadhaar number alongwith demographic information or
biometric information of an individual is submitted to the
Central Identities Data Repository for its verification and such
Repository verifies the correctness or lack thereof, on basis of
information available with it.”
Section 2(d) speaks of the ‘authentication record’ as the record of the time of
authentication, the identity of the requesting entity and the response provided
by UIDAI. The crucial definitions are those of ‘biometric information’, ‘core
53 Section 2(m) states: “enrolment” means the process, as may be specified by regulations, to collect
demographic and biometric information from individuals by the enrolling agencies for the purpose of issuing
Aadhaar numbers to such individuals under this Act.
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PART D
biometric information’, ‘demographic information’ and ‘identity information’.
These are as follows:
“(g) “biometric information” means photograph, finger print,

Iris scan, or other such biological attributes of an individual as
may be specified by regulations;
...
(j) “core biometric information” means finger print, Iris scan, or

such other biological attribute of an individual as may be
specified by regulations;
(k) “demographic information” includes information relating to

the name, date of birth, address and other relevant
information of an individual, as may be specified by
regulations for the purpose of issuing an Aadhaar number,
but shall not include race, religion, caste, tribe, ethnicity,
language, records of entitlement, income or medical history.
...
(n) “identity information” in respect of an individual, includes

his Aadhaar number, his biometric information and his
demographic information.”
The largest subset of the above definitions consists of ‘identity information’
which is defined in an inclusive sense to comprehend the Aadhaar number,
biometric information and demographic information. Demographic information
is defined as information related to the name, date of birth and address and
other information pertaining to an individual as is specified by the regulations.
Significantly, Section 2(k) excludes, by a mandate, race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history from the
purview of demographic information. Biometric information consists, under
Section 2(g), of the photograph, fingerprint, Iris scan, or other such biological
attributes of an individual as may be specified by regulations. Core biometric
information in Section 2(j) excludes photographs (which form part of biometric
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information). Apart from photographs, other biometric information is
comprehended within core biometric information and may be expanded to
include other biological attributes specified in the regulations to be made
under the Act.
41 The identity information of an individual is stored in a central depository.
Section 2(h) defines “Central Identities Data Repository” as a centralised
database in one or more locations containing all Aadhaar numbers issued to
Aadhaar number holders along with the corresponding demographic
information and biometric information of such individuals and other related
information. The CIDR is the backbone of the Aadhaar Act. All the information
collected or created under the Act is stored in it. For the establishment and
maintenance of the CIDR, it has been provided54 under the Act that UIDAI may
engage one or more entities, which can also perform any other functions as
may be specified by regulations. The Act does not prohibit the engagement of
private entities for the establishment and maintenance of the CIDR.
42 Section 3, pertains to the entitlement to obtain an ‘Aadhaar Number’,
which forms a part of Chapter II titled ‘enrolment’. Section 3 comprises of
three parts: (i) an entitlement of every resident to obtain an Aadhaar number;
(ii) a requirement of submitting demographic and biometric information to be
enrolled; and (iii) a process of undergoing enrolment. Section 3 provides thus:
54 Section 10, Aadhaar Act
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PART D
“Section (3): Aadhaar Number.-
(1) Every resident shall be entitled to obtain an Aadhaar

number by submitting his demographic information
and biometric information by undergoing the process
of enrolment:
Provided that the Central Government may, from time
to time, notify such other category of individuals who
may be entitled to obtain an Aadhaar number.
(2) The enrolling agency shall, at the time of enrolment,

inform the individual undergoing enrolment of the
following details in such manner as maybe specified
by regulations, namely:-
(a) The manner in which the information shall be

used;
(b) The nature of recipients with whom the information
is intended to be shared during authentication; and
(c) The existence of a right to access information, the
procedure for making requests for such access
and details of the person or department in-charge
to whom such requests can be made.
(3) On receipt of the demographic information and

biometric information under sub-section (1), the
Authority shall, after verifying the information, in such
manner as may be specified by regulations, issue an
Aadhaar number to such individual.”
Significantly, sub-section (1) of Section 3 recognises an entitlement, of every
resident55 to obtain an Aadhaar number. An entitlement postulates a right. A
right contemplates a liberty, for it is in the exercise of the liberty that the
individual asserts a right. What is a matter of an entitlement is evidently a
matter of option and not a compulsion. That constitutes the fundamental
postulate of Section 3. However, the entitlement to obtain the Aadhaar
55 Section 2(v) states: “resident” means an individual who has resided in India for a period or periods amounting
in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of
application for enrolment
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PART D
number is conditioned by the requirement of submitting demographic and
biometric information and participating in the process of enrolment.
43 The collection of demographic and biometric information is carried out
by an enrolling agency. “Enrolling agency” has been defined under Section
2(l) of the Act as an agency, appointed by UIDAI or a Registrar56, for collecting
demographic and biometric information of individuals under the Act. The
enrolling agency need not be an entity of the state. The definition opens the
space for engagement of private entities in the collection of individual
information for the process of enrolment. The enrolling agencies have to set
up enrolment centers and they have to function in accordance with the
procedure specified by UIDAI.57 Sub-section (2) of Section 3 requires the
enrolling agency to disclose to the individual, who is undergoing enrolment,
three important facets. The first is the manner in which the information which
is disclosed by the individual would be used. The second relates to the nature
of the recipients with whom the information is likely to be shared during the
course of authentication. The third is founded upon the individual’s right of
access to the information disclosed. All these three facets are crucial to the
legislative design because they try to place individual autonomy at the
forefront of the process. An individual who discloses biometric and
demographic information has a statutory entitlement to fully understand how
the information which is disclosed is going to be used and with whom the
56 Section 2(s) states: “Registrar” means any entity authorised or recognised by the Authority for the purpose of
enrolling individuals under this Act
57 Regulation 7, Aadhaar (Enrolment and Update) Regulations, 2016
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information is likely to be shared during authentication.58 Access of the
information supplied to the individual, it has been argued, is an integral feature
of the design created by the statute. These three facets are conditions
precedent to the disclosure of information by the individual. Before the
individual does so, he or she must have a full disclosure which would enable
them to form an informed decision on the exercise of the choice which
underlies an entitlement to an Aadhaar number. The entitlement which is
recognised by sub-section (1) is enforced by the mandatory requirements of
sub-section (2). Before an Aadhaar number is issued, sub-section (3)
requires the authority to verify the information disclosed, in the manner
prescribed by regulations. The Act leaves it to regulations to specify how
verification will be carried out.
44 Sections 4, 5 and 6 indicate the characteristics which are attributed to
Aadhaar numbers, legislative recognition of the steps necessary to ensure
financial inclusion and the requirement of periodical updation of information.
Under Section 4, three important features attach to the possession of an
Aadhaar number. The first is that the number is unique to one individual and
to that individual alone. Once assigned, the Aadhaar number cannot be
reassigned to any other individual. The second feature is that an Aadhaar
number is random and bears no relation to the attributes or identity of its
holder. The third feature of Section 4 is that once assigned, an Aadhaar
number can be accepted as proof of identify of its holder “for any purpose”.
58 Section 3(2), Aadhaar Act.
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Under Section 5, UIDAI is under a mandate to adopt special measures to
issue Aadhaar numbers to women, children, senior citizens, the differently
abled, unskilled and unorganised workers, nomadic tribes, persons who do
not have permanent places of abode and to other categories which may be
defined by the regulations. Section 6 contains an enabling provision by which
the authority may require holders to update their demographic and biometric
information periodically, as specified under regulations. An Aadhaar number
also does not, by itself, constitute a conferment of a right of citizenship, or
domicile (Section 9).
45 Chapter III provides for Authentication. By virtue of Section 7, an
enabling provision has been made by which the Union or state governments
may require proof of an Aadhaar number for receiving subsidies, benefits and
services for which the expenditure is incurred from (or the receipts form part
of) the Consolidated Fund of India. Section 7 is in the following terms:
“7. Proof of Aadhaar number necessary for receipt of certain

subsidies, benefits and services, etc.- The Central
Government or, as the case may be, the State Government
may, for the purpose of establishing identity of an individual
as a condition for receipt of a subsidy, benefit or service for
which the expenditure is incurred from, or the receipt
therefrom forms part of, the Consolidated Fund of India,
require that such individual undergo authentication, or furnish
proof of possession of Aadhaar number or in the case of an
individual to whom no Aadhaar number has been assigned,
such individual makes an application for enrolment:
Provided that if an Aadhaar number is not assigned to an

individual, the individual shall be offered alternate and viable
means of identification for delivery of the subsidy, benefit or
service.”
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Section 3 (as explained earlier) postulates an entitlement to an Aadhaar
number. An entitlement envisages a right which may (or may not) be
exercised by the resident. An entitlement is, after all, an option. Section 7,
however, contemplates a requirement. It covers subsidies, benefits or
services that are charged to the Consolidated Fund of India; the connect being
either in regard to the source of expenditure or the receipts. The statutory
definitions of the expressions ‘benefit’, ‘service’ and ‘subsidy’ are contained in
clauses (f),(w) and (x) of Section 2 which provide as follows:
“(f) “benefit” means any advantage, gift, reward, relief, or

payment, in cash or kind, provided to an individual or a group
of individuals and includes such other benefits as may be
notified by the Central Government;”
(w) “service” means any provision, facility, utility or any other

assistance provided in any form to an individual or a group of
individuals and includes such other services as may be
notified by the Central Government;
(x) “subsidy” means any form of aid, support, grant,

subvention, or appropriation, in cash or kind, to an individual
or a group of individuals and includes such other subsidies as
may be notified by the Central Government.”
46 Section 7 encapsulates a purpose, a condition and a requirement. The
purpose incorporated in the provision is to establish the identity of an
individual. The condition which it embodies is for the receipt of a subsidy,
benefit or service for which the expenditure is incurred or the receipts form
part of the Consolidated Fund of India. Where the purpose and condition are
fulfilled, the central or state governments may require that the individual
should (i) undergo authentication; or (ii) furnish proof of possession of an
Aadhaar number; or (iii) provide proof of an application for enrolment where
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PART D
the Aadhaar number has not been assigned. Three alternatives are stipulated
in Section 7. Where the purpose and condition (noted above) are fulfilled, the
individual has to undergo authentication. Alternately, the individual has to
furnish proof that he or she possesses an Aadhaar number. However, if an
Aadhaar number has not been assigned to the individual, he or she would
have to make an application for enrolment. In a situation where no Aadhaar
number has been assigned as yet, the proviso stipulates that alternate and
viable means of identification would be provided to the individual for the
delivery of subsidies, benefits or services. Section 7 indicates that while the
central or state governments can mandate that an individual must undergo
authentication as a condition for the receipt of a subsidy, benefit or service, a
failure of authentication cannot be held out as a ground to deny benefits,
subsidies or services. That is for the reason that in the absence of
authentication, possession of an Aadhaar number would suffice. Moreover,
even if an individual does not possess an Aadhaar number, the mandate of
Section 7 would be subserved by producing an application for enrolment.
Section 3 which speaks of an entitlement to obtain an Aadhaar number stands
in contrast to Section 7 under which an Aadhaar number may be required as a
condition for the receipt of a subsidy, benefit or service. As an entitlement,
Section 3 makes the possession of an Aadhaar number optional. Section 7 is
an enabling power by which the central or state governments may make the
requirement of an Aadhaar number compulsive or mandatory where a person
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PART D
desires a subsidy, benefit or service for which expenditure is incurred from or
the receipt of which forms part of the Consolidated Fund of India. Section 7
acts as an overriding provision over Section 3.
47 The manner in which an authentication is carried out is elaborated upon
by Section 8. Section 8 is in the following terms:
“Authentication of Aadhaar number.-
(1) The Authority shall perform authentication of the

Aadhaar number of an Aadhaar number holder submitted by
any requesting entity, in relation to his biometric information
or demographic information, subject to such conditions and
on payment of such fees and in such manner as may be
specified by regulations.
(2) A requesting entity shall –

(a) unless otherwise provided in this Act, obtain
the consent of an individual before collecting his identity
information for the purposes of authentication in such
manner as may be specified by regulations; and
(b) ensure that the identity information of an
individual is only used for submission to the Central
Identities Data Repository for authentication.
(3) A requesting entity shall inform, in such manner as

may be specified by regulations, the individual submitting his
identify information for authentication, the following details
with respect to authentication, namely:-
(a) the nature of information that may be shared
upon authentication;
(b) the uses to which the information received
during authentication may be put by the requesting
entity; and
(c) alternatives to submission of identity
information to the requesting entity.
(4) The Authority shall respond to an authentication query

with a positive, negative or any other appropriate response
sharing such identity information excluding any core biometric
information.”
As we have noticed earlier, authentication involves a process in which the
Aadhaar number, together with the demographic or biometric information, is

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submitted to the CIDR for verification and is verified to be correct or otherwise
by the repository on the basis of the information available with it. Under sub-
section (1) of Section 8 authentication has to be performed on a request
submitted by a requesting entity. The expression ‘requesting entity’ is defined
in Section 2(u) as follows:
“(u) “requesting entity” means an agency or person that

submits the Aadhaar number, and demographic information
or biometric information, of an individual to the Central
Identities Data Repository for authentication.”
This definition also does not prohibit the engagement of private agencies for
the process of authentication. Under sub-section (2) of Section 8, every
requesting entity is bound to obtain the consent of the individual before
collecting his or her identity information for the purpose of authentication.
Moreover, the requesting entity must ensure that the identity information is
submitted only for the purpose of authentication to the CIDR. Before the
requesting entity submits the identity information for authentication, it is under
a mandate of law to disclose (i) the nature of the information that may be
shared upon authentication; (ii) the use to which information received during
authentication may be put; and (iii) alternatives to the submission of identity
information.59 During the course of authentication, UIDAI is required to
respond to an authentication query with a positive, negative or appropriate
response sharing such identity information excluding core biometric
information.60 Core biometric information cannot be shared. The modes of
59 Section 8(3), Aadhaar Act

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PART D
authentication are as mentioned in Regulation 4 of the Aadhaar
(Authentication) Regulations 2016. It can be based on (i) demographic
information; (ii) a one-time password with limited time validity; (iii) biometrics
or (iv) multi-factor authentication (a combination of two or more of the above).
The Requesting Agency chooses the mode according to its requirement.
48 UIDAI is the umbrella entity under the Aadhaar Act. The statutory
backing to the authority of UIDAI to undertake the responsibility for the
processes of enrolment and authentication and maintenance of CIDR has
been provided under Chapter IV of the Act. Section 11 provides that the
Central Government shall, by notification, establish UIDAI, a body corporate 61,
to be responsible for the processes of enrolment and authentication and
perform such other functions as are assigned to it under the Act. The
composition of UIDAI has been provided under Section 12: a Chairperson
(appointed on part-time or full-time basis); two part-time Members, and the
chief executive officer who shall be the Member- Secretary, to be appointed
by the Central Government. Section 23 enunciates the powers and functions
of the UIDAI. Sub-section (1) of Section 23 requires UIDAI to develop the
policy, procedure and systems for issuing Aadhaar numbers to individuals and
to perform authentication. Section 23(2) provides an inclusive list of the
powers and functions of UIDAI:
“(2) Without prejudice to sub-section (1), the powers and

functions of the Authority, inter alia, include—
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PART D
(a) specifying, by regulations, demographic information and

biometric information required for enrolment and the
processes for collection and verification thereof;
(b) collecting demographic information and biometric

information from any individual seeking an Aadhaar number
in such manner as may be specified by regulations;
(c) appointing of one or more entities to operate the Central

Identities Data Repository;
(d) generating and assigning Aadhaar numbers to individuals;
(e) performing authentication of Aadhaar numbers;
(f) maintaining and updating the information of individuals in

the Central Identities Data Repository in such manner as may
be specified by regulations;
(g) omitting and deactivating of an Aadhaar number and

information relating thereto in such manner as may be
specified by regulations;
(h) specifying the manner of use of Aadhaar numbers for the

purposes of providing or availing of various subsidies,
benefits, services and other purposes for which Aadhaar
numbers may be used;
(i) specifying, by regulations, the terms and conditions for

appointment of Registrars, enrolling agencies and service
providers and revocation of appointments thereof;
(j) establishing, operating and maintaining of the Central

(k) sharing, in such manner as may be specified by

regulations, the information of Aadhaar number holders,
subject to the provisions of this Act;
(l) calling for information and records, conducting inspections,

inquiries and audit of the operations for the purposes of this
Act of the Central Identities Data Repository, Registrars,
enrolling agencies and other agencies appointed under this
Act;
(m) specifying, by regulations, various processes relating to

data management, security protocols and other technology
safeguards under this Act;
(n) specifying, by regulations, the conditions and procedures

for issuance of new Aadhaar number to existing Aadhaar
number holder;
(o) levying and collecting the fees or authorising the

Registrars, enrolling agencies or other service providers to
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PART D
collect such fees for the services provided by them under this
Act in such manner as may be specified by regulations;
(p) appointing such committees as may be necessary to

assist the Authority in discharge of its functions for the
purposes of this Act;
(q) promoting research and development for advancement in

biometrics and related areas, including usage of Aadhaar
numbers through appropriate mechanisms;
(r) evolving of, and specifying, by regulations, policies and

practices for Registrars, enrolling agencies and other service
providers;
(s) setting up facilitation centres and grievance redressal

mechanism for redressal of grievances of individuals,
Registrars, enrolling agencies and other service providers;
(t) such other powers and functions as may be prescribed.”
Under Section 54, UIDAI is empowered to make regulations and rules
consistent with the Act, for carrying out the provisions of the Act. Sub-section
(2) of Section 54 provides that UIDAI may make regulations covering any of
the following matters:
“(a) the biometric information under clause (g) and the

demographic information under clause (k), and the process of
collecting demographic information and biometric information
from the individuals by enrolling agencies under clause (m) of
section 2;
(b) the manner of verifying the demographic information and

biometric information for issue of Aadhaar number under sub-
section (3) of section 3;
(c) the conditions for accepting an Aadhaar number as proof

of identity of the Aadhaar number holder under sub-section
(3) of section 4;
(d) the other categories of individuals under section 5 for

whom the Authority shall take special measures for allotment
of Aadhaar number;
(e) the manner of updating biometric information and

demographic information under section 6;
(f) the procedure for authentication of the Aadhaar number

under section 8;
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PART D
(g) the other functions to be performed by the Central

Identities Data Repository under section 10;
(h) the time and places of meetings of the Authority and the
procedure for transaction of business to be followed by it,
including the quorum, under sub-section (1) of section 19;
(i) the salary and allowances payable to, and other terms and
conditions of service of, the chief executive officer, officers
and other employees of the Authority under sub-section (2) of
section 21;
(j) the demographic information and biometric information

under clause (a) and the manner of their collection under
clause (b) of sub-section (2) of section 23;
(k) the manner of maintaining and updating the information of

individuals in the Central Identities Data Repository under
clause (f) of sub-section (2) of section 23;
(l) the manner of omitting and deactivating an Aadhaar

number and information relating thereto under clause (g) of
sub-section (2) of section 23;
(m) the manner of use of Aadhaar numbers for the purposes

of providing or availing of various subsidies, benefits, services
and other purposes for which Aadhaar numbers may be used
under clause (h) of sub-section (2) of section 23;
(n) the terms and conditions for appointment of Registrars,

enrolling agencies and other service providers and the
revocation of appointments thereof under clause (i) of sub-
(o) the manner of sharing information of Aadhaar number

holder under clause (k) of sub-section (2) of section 23;
(p) various processes relating to data management, security

protocol and other technology safeguards under clause (m) of
sub-section (2) of section 23;
(q) the procedure for issuance of new Aadhaar number to

existing Aadhaar number holder under clause (n) of sub-
(r) manner of authorising Registrars, enrolling agencies or

other service providers to collect such fees for services
provided by them under clause (o) of sub-section (2) of
section 23;
(s) policies and practices to be followed by the Registrar,

enrolling agencies and other service providers under clause
(r) of sub-section (2) of section 23;
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PART D
(t) the manner of accessing the identity information by the

Aadhaar number holder under the proviso to sub-section (5)
of section 28;
(u) the manner of sharing the identity information, other than

core biometric information, collected or created under this Act
under sub-section (2) of section 29;
(v) the manner of alteration of demographic information under

sub-section (1) and biometric information under sub-section
(2) of section 31;
(w) the manner of and the time for maintaining the request for
authentication and the response thereon under sub-section
(1), and the manner of obtaining, by the Aadhaar number
holder, the authentication records under sub-section (2) of
section 32;
(x) any other matter which is required to be, or may be,

specified, or in respect of which provision is to be or may be
made by regulations.”
Section 11(1), read with Sections 23(2) and 54(2), indicates that UIDAI is the
sole authority vested with the power and responsibility of carrying out
numerous functions. These functions include:
(i) collection of demographic information and biometric information from
individuals;
(ii) generating and assigning Aadhaar numbers to individuals;
(iii) performing authentication of Aadhaar numbers;
(iv) maintaining and updating the information of individuals in the CIDR;
(v) omitting and deactivating of an Aadhaar number;
(vi) specifying the manner of use of Aadhaar numbers for the purposes of
providing or availing of various subsidies, benefits, services and other
purposes;
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PART D
(vii) specifying the terms and conditions for appointment of Registrars,
enrolling agencies and service providers and revocation of appointments;
(viii) specifying various processes relating to data management, security
protocols and other technological safeguards under the Act;
(ix) setting up facilitation centres and mechanisms for the redressal of the
grievances of individuals, Registrars, enrolling agencies and other service
providers; and
(x) other functions prescribed by the Central government.
The Act does not set any limits within which the sole authority of UIDAI may
operate. UIDAI has been conferred with discretionary powers as provided in
the above provisions. The architecture of Aadhaar keeps UIDAI at the centre
of all processes.
49 For the purpose of performing the functions of collecting, storing,
securing, processing of information, delivery of Aadhaar numbers to
individuals or performing authentication, clause (a) of Section 23(3)
contemplates that UIDAI may enter into Memoranda of Understanding or
agreements with the central or state governments, Union territories or other
agencies. In discharging its functions, UIDAI may appoint, by notification, a
number of Registrars, engage and authorise such agencies to collect, store,
secure and process information or perform authentication or such other
functions in relation to it, as may be necessary for the purposes of the Act
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PART D
(Section 23 (3) (b)). For the efficient discharge of its functions, UIDAI may also
engage consultants, advisors and other persons as may be required (Section
23(4)). These, like many other provisions, open the scope for the involvement
of private entities in the Aadhaar project. This is also evident from Section 57
of the Act, which allows the use of the Aadhaar number, by the state,
corporate entities or persons to establish the identity of an individual:
“57. Act not to prevent use of Aadhaar number for other

purposes under law.-
Nothing contained in this Act shall prevent the use of Aadhaar

number for establishing the identity of an individual for any
purpose, whether by the State or any body corporate or
person, pursuant to any law, for the time being in force, or
any contract to this effect:
Provided that the use of Aadhaar number under this section

shall be subject to the procedure and obligations under
section 8 and Chapter VI.”
50 The responsibility to ensure the security of identity information and
authentication records of individuals has been placed on UIDAI. 62 UIDAI is
also required to ensure confidentiality of identity information and authentication
records of individuals,63 except in circumstances, where disclosure of
information is permitted by the Act.64 Section 28(3) requires UIDAI to take all
necessary measures to ensure that the information in its possession or control,
including information stored in the CIDR, is secured and protected against
access, use or disclosure not permitted under the Act or regulations, and
against accidental or intentional destruction, loss or damage. For the purpose

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PART D
of maintaining the security and confidentiality of the information of individuals,
UIDAI is also required, under Section 28(4), to:
“(a) adopt and implement appropriate technical and

organisational security measures;
(b) ensure that the agencies, consultants, advisors or other

persons appointed or engaged for performing any function of
the Authority under this Act, have in place appropriate
technical and organisational security measures for the
information; and
(c) ensure that the agreements or arrangements entered into

with such agencies, consultants, advisors or other persons,
impose obligations equivalent to those imposed on the
Authority under this Act, and require such agencies,
consultants, advisors and other persons to act only on
instructions from the Authority.”
Except where it has otherwise been provided in the Aadhaar Act, a burden is
placed (under Section 28(5)) upon UIDAI, its officers, other employees
(whether during service or thereafter), and any agency that maintains the
CIDR not to reveal any information stored or the authentication record to
anyone. An Aadhaar number holder, however, may request UIDAI to provide
access to identity information excluding core biometric information in the
manner as may be specified by regulations (proviso to Section 28(5)).
Section 29 puts restrictions on sharing of information, collected or created
under the Act. Sub-section (1) of Section 29 provides that:
“(1) No core biometric information, collected or created under

this Act, shall be—
(a) shared with anyone for any reason whatsoever; or
(b) used for any purpose other than generation of Aadhaar
numbers and authentication under this Act.”
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Sub-section (2) contemplates that the identity information, other than core
biometric information, collected or created under the Act may be shared only in
accordance with the provisions of the Act and in the manner as may be
specified by regulations.
A burden is placed, under Section 29(3), upon a requesting entity to ensure
that any identity information available with it, is neither used for any purpose,
other than that specified to the individual at the time of submitting identity
information for authentication; nor disclosed further, except with the prior
consent of the individual to whom such information relates.
Sub-section (4) prohibits publishing, display or posting publicly of any Aadhaar
number or core biometric information collected or created under the Act in
respect of an Aadhaar number holder, except for such purposes as may be
specified by the regulations. Section 30 contemplates that the biometric
information collected and stored in an electronic form is to be deemed
“sensitive personal data or information”. The provision specifically relates to
biometric information. The provision dilutes the protection that should be given
to demographic information. Further, a statutory duty has been placed upon
UIDAI to maintain authentication records in the manner and for a time period
prescribed by regulations.65 The issue of maintenance of authentication
records by UIDAI has been contentious and is dealt in a subsequent section
titled “Proportionality”. A statutory right is provided to every Aadhaar number
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holder to obtain his authentication record in the manner specified by
regulations.66 Section 32(3) prohibits UIDAI (either by itself or through any
entity under its control) to collect, keep or maintain any information about the
purpose of authentication.
51 The Aadhaar Act allows disclosure of individual information in limited
circumstances. The manner and purpose for which information of individuals,
including identity information or authentication records, can be disclosed has
been provided under Section 33 of the Act. Section 33 states:
“(1) Nothing contained in sub-section (2) or sub-section (5) of

section 28 or sub-section (2) of section 29 shall apply in
respect of any disclosure of information, including identity
information or authentication records, made pursuant to an
order of a court not inferior to that of a District Judge:
Provided that no order by the court under this sub-section

shall be made without giving an opportunity of hearing to the
Authority.
(2) Nothing contained in sub-section (2) or sub-section (5) of

section 28 and clause (b) of sub-section (1), sub-section (2)
or sub-section (3) of section 29 shall apply in respect of any
disclosure of information, including identity information or
authentication records, made in the interest of national
security in pursuance of a direction of an officer not below the
rank of Joint Secretary to the Government of India specially
authorised in this behalf by an order of the Central
Government:
Provided that every direction issued under this sub-section,

shall be reviewed by an Oversight Committee consisting of
the Cabinet Secretary and the Secretaries to the Government
of India in the Department of Legal Affairs and the
Department of Electronics and Information Technology,
before it takes effect:
Provided further that any direction issued under this sub-

section shall be valid for a period of three months from the
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date of its issue, which may be extended for a further period

of three months after the review by the Oversight Committee.”
The Aadhaar Act provides two categories: a “court order” and “in the interest of
national security”, where the personal information of an individual can be
disclosed.
Under Section 31, in case any demographic information or biometric
information of an Aadhaar number holder is found to be incorrect, is lost or
changes subsequently, the Aadhaar number holder is required to request
UIDAI to make an alteration in his or her record in the CIDR in the manner
specified by regulations. On receipt of a request for alteration of demographic
or biometric information, UIDAI is vested with the power, subject to its
satisfaction, to make alterations as required in the record relating to the
Aadhaar number holder and to intimate the alteration to the holder. Sub-
section (4) of Section 31 prohibits alteration of any identity information in the
CIDR except in the manner provided in the Act or regulations made in this
behalf.
52 Chapter VII provides offences and penalties. Under Section 34, a
penalty has been provided for impersonation at the time of enrolment. Section
35 creates a penalty for impersonation of the Aadhaar number holder by
changing demographic or biometric information. Section 37 provides a penalty
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PART D
for disclosing identity information (which was collected in the course of
enrolment or authentication).
Under Section 38, a penalty for unauthorised access to the CIDR has been
provided. Section 38 provides thus:
“Whoever, not being authorised by the Authority,

intentionally,—
(a) accesses or secures access to the Central Identities Data

Repository;
(b) downloads, copies or extracts any data from the Central

Identities Data Repository or stored in any removable storage
medium;
(c) introduces or causes to be introduced any virus or other

computer contaminant in the Central Identities Data
Repository;
(d) damages or causes to be damaged the data in the Central

(e) disrupts or causes disruption of the access to the Central

(f) denies or causes a denial of access to any person who is

authorised to access the Central Identities Data Repository;
(g) reveals any information in contravention of sub-section (5)

of section 28, or shares, uses or displays information in
contravention of section 29 or assists any person in any of the
aforementioned acts;
(h) destroys, deletes or alters any information stored in any

removable storage media or in the Central Identities Data
Repository or diminishes its value or utility or affects it
injuriously by any means; or
(i) steals, conceals, destroys or alters or causes any person

to steal, conceal, destroy or alter any computer source code
used by the Authority with an intention to cause damage,
shall be punishable with imprisonment for a term which may

extend to three years and shall also be liable to a fine which
shall not be less than ten lakh rupees.”
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Section 39 imposes a penalty for tampering with data in the CIDR. Sections 40
and 41 impose penalties on requesting and enrolment agencies in case they
act in contravention of the obligations imposed upon them under the Act.
Section 42 provides for a general penalty for an offence under the Act or the
rules or regulations made thereunder, for which no specific penalty is provided
under the Act. Under Section 43, when an offence has been committed by a
company, every person who at the time the offence was committed was in
charge of, and was responsible to the company for the conduct of the business
of the company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly.
Section 44 indicates that the provisions of the Act would apply to any offence
or contravention committed outside India by any person, irrespective of
nationality. The power to investigate offences under the Act has been placed,
under Section 45, on a police officer not below the rank of Inspector of Police.
Section 47(1) of the Act puts a bar on the courts from taking cognizance of any
offence punishable under the Act, except when a complaint is made by UIDAI
or any officer or person authorised by it. The provision indicates that the scope
of cognizance is limited. It does not allow an individual who finds that there is
any violation under the Act, to initiate criminal proceedings. The scope of
grievance redressal under the Act is restrictive and works only on the action of
UIDAI or a person authorised by it. UIDAI has set up a grievance redressal
mechanism as contemplated by Section 23(2)(s) of the Aadhaar Act. There is
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no grievance redressal mechanism if any breach or offence is committed by
UIDAI itself. The right of an individual to seek remedy under the Act if his/her
rights are violated will be discussed subsequently. Under sub-Section (2), no
court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial
Magistrate can try any offence punishable under the Act.
Section 48 empowers the Central Government to supersede UIDAI, in certain
situations. Under Section 50, UIDAI, in exercise of its powers or performance
of its functions under the Act, shall be bound by the written directions on
questions of policy of the Central Government. Section 51 vests power in
UIDAI to delegate to any member, officer or any other person, its powers and
functions under the Act (except the power under section 54) as it may deem
necessary. Section 51 grants a wide discretion to the UIDAI to delegate any of
its powers and functions.
Section 55 requires every rule and regulation made under the Aadhaar Act to
be laid down before each House of Parliament. The Section states:
“55. Laying of rules and regulations before Parliament.-
Every rule and every regulation made under this Act shall be
laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the
session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the rule or regulation, or both the Houses
agree that the rule or regulation should not be made, the rule
or regulation shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that
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any such modification or annulment shall be without prejudice

to the validity of anything previously done under that rule or
regulation.”
UIDAI needs to place the regulations framed by it before Parliament.
53 The architecture of Aadhaar is integral to the exercise of analyzing the
reasonableness of the entire project. Whether the architecture addresses the
concerns raised by the petitioners is an essential component of this exercise.
The architecture of Aadhaar must pass the constitutional requirements of
reasonableness and proportionality. This aspect will be dealt under the
heading of “proportionality” in a subsequent part of this judgment.
E Passage of Aadhaar Act as a Money Bill
54 The petitioners challenge the constitutionality of the Aadhaar Act,
contending that it could not have been passed as a Money Bill. According to
the submission, the Aadhaar Act did not qualify as a Money Bill under Article
110 of the Constitution, and it legislates on matters which fall outside that
provision. The Attorney General for India submitted that the Constitution
accords finality to the decision of the Speaker as to whether a Bill is a Money
Bill and hence the question whether the Aadhaar Act fulfils the requirements
of being categorized as Money Bill is not open to judicial review. The Attorney
General also urged that the Aadhaar Act does fall under Article 110.
Article 110 provides thus:
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“(1) For the purposes of this Chapter, a Bill shall be deemed

to be a Money Bill if it contains only provisions dealing with all
or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation
of any tax;
(b) the regulation of the borrowing of money or the giving of
any guarantee by the Government of India, or the amendment
of the law with respect to any financial obligations undertaken
or to be undertaken by the Government of India;
(c) the custody of the Consolidated Fund or the Contingency
Fund of India, the payment of moneys into or the withdrawal
of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund
of India;
(e) the declaring of any expenditure to be expenditure
charged on the Consolidated Fund of India or the increasing
of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund
of India or the public account of India or the custody or issue
of such money or the audit of the accounts of the Union or of
a State; or
(g) any matter incidental to any of the matters specified in
sub-clauses (a) to (f).
(2) A Bill shall not be deemed to be a Money Bill by reason
only that it provides for the imposition of fines or other
pecuniary penalties, or for the demand or payment of fees for
licences or fees for services rendered, or by reason that it
provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local
purposes.
(3) If any question arises whether a Bill is a Money Bill or not,
the decision of the Speaker of the House of the People
thereon shall be final.
(4) There shall be endorsed on every Money Bill when it is
transmitted to the Council of States under article 109, and
when it is presented to the President for assent under article
111, the certificate of the Speaker of the House of the People
signed by him that it is a Money Bill.”
55 The key questions before this Court are:
(i) Whether under Article 110(3), the decision of the Speaker of the Lok
Sabha, that a Bill is a Money Bill, is immune from judicial review;
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(ii) If the answer to (i) is in the negative, whether the Aadhaar Act is a Money
Bill under Article 110(1) of the Constitution; and
(iii) If the Bill to enact the Aadhaar Act was not a Money Bill, whether a
declaration of unconstitutionality will result from its legislative passage as
a Money Bill in the Lok Sabha.
E.I Judicial Review of the Speaker’s Decision
56 Article 109 provides for a special procedure in respect of Money Bills. It
provides that a Money Bill shall not be introduced in the Council of States, the
Rajya Sabha. After a Money Bill is introduced in the Lok Sabha and passed by
it, the Bill has to be transmitted to the Rajya Sabha for its recommendations.
Article 110(4) provides that when a ‘Money Bill’ is transmitted from the Lower
House to the Upper House, it must be endorsed with a certificate by the
Speaker of the Lower House that it is a Money Bill. From the date of the
receipt of the Money Bill, the Rajya Sabha is bound to return the Bill to the Lok
Sabha, within a period of fourteen days, with its recommendations. The Lok
Sabha has the discretion to “either accept or reject all or any of the
recommendations” made by the Rajya Sabha.67 If the Lok Sabha accepts any
of the recommendations of the Rajya Sabha, the Money Bill is deemed to
have been passed by both Houses of the Parliament “with the amendments
recommended” by the Rajya Sabha and accepted by the Lok Sabha.68
67 Article 109(2), The Constitution of India

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However, when the Lok Sabha “does not accept any of the recommendations”
of the Rajya Sabha, the Money Bill is said to have been passed by both
Houses in the form in which it was originally passed by the Lok Sabha.69 If a
Money Bill after being passed by the Lok Sabha and transmitted to the Rajya
Sabha for its recommendations is not returned to the Lok Sabha within a
period of fourteen days, it is then deemed to have been passed by both the
Houses of the Parliament in the form in which it was originally passed by the
Lok Sabha.70 When a Money Bill has been passed by the Houses of the
Parliament, Article 111 requires it to be presented to the President along with
the Lok Sabha Speaker’s certificate for assent71. Article 117(1) also provides
that a Bill “making provision for any of the matters specified in sub-clauses (a)
to (f) of clause (1) of article 110” shall also not be introduced in the Rajya
Sabha.
57 The Constitution contains corresponding provisions for Money Bills
introduced in and passed by a state legislative assembly. Article 198 provides
a special procedure for Money Bills in the state legislative assembly. Article
199(3) provides for the finality of the decision of the Speaker of the Legislative
Assembly. Under Article 200, when a Money Bill has been passed by the
State Legislature, it is to be presented to the Governor, along with the
Speaker’s certificate, for assent.72

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Article 107 contains provisions for the introduction and passing of Bills in
general and provides thus:
“(1) Subject to the provisions of articles 109 and 117 with

respect to Money Bills and other financial Bills, a Bill may
originate in either House of Parliament.
(2) Subject to the provisions of articles 108 and 109, a Bill
shall not be deemed to have been passed by the Houses
of Parliament unless it has been agreed to by both
Houses, either without amendment or with such
amendments only as are agreed to by both Houses.
(3) A Bill pending in Parliament shall not lapse by reason of
the prorogation of the Houses.
(4) A Bill pending in the Council of States which has not been
passed by the House of the People shall not lapse on a
dissolution of the House of the People.
(5) A Bill which is pending in the House of the People, or
which having been passed by the House of the People is
pending in the Council of States, shall, subject to the
provisions of article 108, lapse on a dissolution of the House
of the People.”
58 Ordinary bills can be passed only when they are agreed to by both
Houses. Amendments suggested by one House have to be agreed upon by
both the Houses for the bill to be passed. Both Houses of Parliament have a
vital role assigned by the Constitution in the passage of ordinary bills.
Deviating from the important role which it assigns to the Rajya Sabha in the
passage of legislation, the Constitution carves out a limited role for the Rajya
Sabha in the passage of Money Bills.
59 The Constitution confers special powers on the Speaker of the Lok
Sabha in the passage of a Money Bill. Ordinary bills (other than Money Bills)
can originate in either House of Parliament. They can be scrutinised, debated
in and amended in both the Houses of Parliament during the course of
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passage. A Bill is not regarded as being passed by Parliament until both the
Houses agree to its passage without amendments or with the amendments as
proposed. A constitutional discretion is conferred on the Speaker of the Lok
Sabha to decide whether a Bill is a Money Bill. When the Speaker of the Lok
Sabha declares a Bill to be a Money Bill, the Rajya Sabha is left only with the
option to make recommendations to the Bill within the deadline of fourteen
days. Being only recommendations, they do not bind the Lok Sabha. They
may either be accepted or rejected by the Lok Sabha.
60 The Rajya Sabha is a constitutional body in a bicameral legislature. The
makers of the Constitution adopted bicameralism from Britain. The origin of
the limited role that the Upper House has in the passing of a Money Bill can
be traced to the British Parliament Act, 1911, which will be discussed in a
subsequent part of this analysis. The draftspersons of the Constitution were
conscious of the impact of a misuse of institutional power. They provided for a
detailed blue print of the architecture of constitutional governance. It is
necessary to understand our constitutional history in order to comprehend the
scope of the finality attributed to the Speaker’s decision on whether or not a
Bill is a Money Bill.
61 The origins of the procedure of passing Money Bills in the United
Kingdom are older than the Parliament Act of 1911. The authoritative
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treatise73, by Thomas Erskine May, on the law, privileges, proceedings and
usage of Parliament in Britain dwells on the history of the evolution of the
relationship between the House of Commons and the House of Lords with
regard to their powers of taxation and in relation to national revenue and
public expenditure.74
A grant imposed by the House of Commons would become law in effect, only
after the assent of the House of Lords and of the Queen.75 While the House of
Commons enjoyed the legal right to originate grants for nearly 300 years, the
House of Lords was originally not precluded from amending a Bill. But in
167176 and 167877 respectively, the Commons passed two resolutions to
curtail the powers of the House of Lords so that only the Commons had the
sole right to direct or limit the scope of a Bill regarding taxation and
government expenditure. The House of Lords was excluded from altering any
such Bill.
The exclusion of the Lords was so strictly followed that the Commons even
denied to the former, the power of authorising the taking of fees, imposing
73 Thomas Erskine May, A treatise on the law, privileges, proceedings and usage of Parliament, Ninth Edition
(1883)
74
Ibid, at pages 637-638. It notes: “At length, when the Commons had increased in political influence, and the
subsidies voted by them had become the principal source of national revenue, they gradually assumed their
present position in regard to taxation and supply, and included the Lords as well as themselves in their grants.
So far back as 1407, it was stated by King Henry IV, in the ordinance called “The Indemnity of the Lords and
Commons”, that grants were “granted by the Commons, and assented to by the Lords”.”
76 Ibid, at page 641. The Resolution stated: “That in all aids given to the king by the Commons, the rate or tax
ought not to be altered”.

77 Ibid. The Resolution stated: “That all aids and supplies, and aids to his Majesty in Parliament, are the sole gift
of the Commons ; and all bills for the granting of any such aids and supplies ought to begin with the Commons
: and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills the ends,
purposes, considerations, conditions, limitations, and qualifications of such grants ; which ought not to be
changed or altered by the House of Lords.”
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pecuniary penalties or of varying the mode of suing for them, or of applying
them when recovered, though such provisions were necessary to give effect
to the general enactments of a Bill.78 Since this strict enforcement was found
to be “attended with unnecessary inconvenience”, it led to the adopting of a
Standing Order in 1849 which accommodated space to the House of Lords for
suggesting amendments on legislative issues.79 However, the constitutional
skirmishes continued. They eventually led to the passage of the Parliament
Act of 1911, which essentially deprived the House of Lords of the right to
reject Money Bills.
62 The Parliament Act 1911 was explicitly aimed at “regulating the
relations between the two Houses of Parliament”80. The Preamble of the Act
indicates that it was enacted for “restricting the existing powers of the House
of Lords”81. Section 1(1) provides for the power of the House of Lords on
Money Bills:
“If a Money Bill, having been passed by the House of

Commons, and sent up to the House of Lords at least one
month before the end of the session, is not passed by the
House of Lords without amendment within one month after it
is so sent up to that House, the Bill shall, unless the House of
Commons direct to the contrary, be present to His Majesty
and become an Act of Parliament on the Royal Assent being
signified, notwithstanding that the House of Lords have not
consented to the Bill.”
“Money Bill” was defined statutorily for the first time. Section 1(2) provided:

79 Ibid, pages 646-647
80 Preamble of the Parliament Act 1911
81 Ibid
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“A Money Bill means a Public Bill which in the opinion of the

Speaker of the House of Commons contains only provisions
dealing with all or any of the following subjects, namely, the
imposition, repeal, remission, alteration, or regulation of
taxation; the imposition for the payment of debt or other
financial purposes of charges on the Consolidated Fund, [the
National Loans Fund] or on money provided by Parliament, or
the variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to those
subjects or any of them. In this subsection the expressions
“taxation”, “public money”, and “loan” respectively do not
include any taxation, money, or loan raised by local
authorities or bodies for local purposes.”
The use of the expression “means” in the definition of a Money Bill indicates it
was exhaustively defined. A Bill would be a Money Bill, if the Speaker of the
House of Commons opined that it contains “only” certain specific provisions.
Under Section 1(3), when a Money Bill is sent up to the House of Lords and to
Her Majesty for assent, it should be endorsed by a certificate of the Speaker
of the House of Commons that it is a Money Bill. This sub-section also
provides that before giving his certificate, the Speaker may consult “two
members to be appointed from the Chairman’s Panel at the beginning of each
Session by the Committee of Selection”. Therefore, the Speaker has to certify
any bill which in his or her opinion falls within the definition of a Money Bill.
Any bill containing provisions outside the definition would not be certified as a
Money Bill. The Speaker does not certify a Bill until it has reached the form in
which it will leave the House of Commons, that is, at the end of its Commons
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stage. The Speaker can only decide whether or not to certify a Bill once it has
passed the House.82
Section 3 of the 1911 Act provides finality to the certificate issued by the
Speaker and renders it immune from judicial review. According to it:
“Any certificate of the Speaker of the House of Commons

given under this Act shall be conclusive for all purposes,
and shall not be questioned in any court of law.”
(Emphasis supplied)
The Act provides finality to the decision of the Speaker of the House of
Commons. By using the phrase “shall not be questioned in any court of law”,
the Act grants immunity to the Speaker’s decision from judicial review.
The statutory concept of a ‘Money Bill’ and the Speaker’s certification of a Bill
as a ‘Money Bill’ introduced by the Parliament Act, 1911 ultimately found its
way into the Constitution of India, but with significant modifications.
63 In India, the categorization of Money Bills can be said to have begun
from the Commonwealth of India Bill 1925, which was drafted by a National
Convention comprised of 250 members, with Tej Bahadur Sapru as its
Chairman. Article 36 of the Commonwealth Bill provided:
“36. (a) Any Bill which appropriates revenue or moneys for

the ordinary annual services of the Government shall deal
only with such appropriation.
82 House of Lords, Select Committee on the Constitution, Money Bills and Commons Financial Privilege (2011),
available at https://publications.parliament.uk/pa/ld201011/ldselect/ldconst/97/97.pdf
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(b) Bills imposing taxation· shall deal only with the imposition
of taxes, and any provision therein dealing with any other
matter shall be of no effect.
(c) Bills for the appropriation of revenues or moneys or
imposing taxation shall be introduced only by a member of
the Cabinet, and can only originate in the Legislative
Assembly.”
The Bill neither provided a definition of a Money Bill nor did it discuss the role
of the Speaker of the Assembly of elected representatives.
In its Madras session of December 1927, the Indian National Congress, as a
response to the setting up of the Simon Commission (which did not have any
Indian members) decided to set up an All Parties’ Conference to draft a
Constitution for India. With Motilal Nehru as the Chairman of the Committee
constituted by the All Parties’ Conference, a Report was prepared. Article 17
of the Nehru Report provided a definition of a Money Bill:
“17. A money bill means a bill which contains only provisions

dealing with all or any of the following subjects, namely the
imposition, repeal, remission, alteration or regulation of
taxation; the imposition, for the payment of debt or other
financial purposes, of charges on public revenues or monies,
or the variation or repeal of any such charges; the supply,
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising of any loan or the repayment
thereof; or subordinate matters incidental to those subjects or
any of them. In this definition the expression “taxation”,
“public money” and “loan” respectively do not include any
taxation, money or loan raised by local authorities or bodies
for local purposes.”
The definition of a Money Bill in the Nehru Report, was drawn from the
Parliament Act, 1911 in Britain. Article 18 of the Report provided that the
“question whether a bill is or is not a money bill will be decided by the
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president of the House of Representatives”. The House of Representatives
(the Lower House) was provided the final authority to either accept or reject
the recommendations made by the Senate (the Upper House). Article 19 of
the Report provided thus:
“A money bill passed by the House of Representatives shall

be sent to the Senate for its recommendations and it shall be
returned not later than… days therefrom to the House of
Representatives, which may pass it, accepting or rejecting all
or any of the recommendations of the Senate; and the bill so
passed shall be deemed to have been passed by both
chambers.”
While the Constituent Assembly of India was in session, the Socialist Party of
India came up with a “Draft Constitution of the Republic of India”, based on its
ideologies. Article 147 of its Draft Constitution provided:
“147. (1) A Bill making provision-

(a) for imposing, abolishing, remitting, altering or regulating
any tax ; or
(b) for regulating the borrowing of money, or giving any
guarantee by the Government, or for amending the law with
respect to any financial obligations undertaken or to be
undertaken by the Government; or
(c) for declaring any expenditure to be expenditure charged
on the public revenues, or for increasing the amount of any
such expenditure
shall be deemed as a money Bill and shall not be introduced
or moved except on the recommendation of the Government.
(2) A Bill or amendment shall not be deemed to make
provision for any of the purposes aforesaid by reason only
that it provides for the Imposition of fines or other pecuniary
penalties, or for the demand and payment of fees for licenses
or fees for services rendered, or by reason that it provides for
the imposition, abolition, remission, alteration, or regulation of
tax by any local authority or body for local purposes.
(3) In case of dispute whether a Bill is a money Bill or not, the
decision of the Speaker, or in his absence of the Deputy
Speaker, shall be final.”
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The Draft Constitution of the Socialist Party conferred a discretion on the
Speaker of the Lower House, and in his absence, on the Deputy Speaker, to
decide whether a Bill is a Money Bill.
64 There was another model present before the makers of the Indian
Constitution. British India was governed by the provisions of the Government
of India Act, 1935, which provided for two Houses of Parliament − the Council
of States (Upper House) and Federal Assembly (Lower House). Section 37 of
the Government of India Act 1935 made special provisions for financial bills:
“37.-(1) A Bill or amendment making provision- (a) for

imposing or increasing any tax; or (b) for regulating the
borrowing of money or the giving of any guarantee by the
Federal Government, or for amending the law with respect to
any financial obligations undertaken or to be undertaken by
the Federal Government ; or (c) for declaring any expenditure
to be expenditure charged on the revenues of the Federation,
or for increasing the amount of any such expenditure, shall
not be introduced or moved except on the recommendation of
the Governor-General, and a Bill making such provision shall
not be introduced in the Council of State.”
Under the 1935 Act, there was no provision for a Speaker’s certificate
regarding a Financial Bill. Section 38(1) authorized each House to make rules
regulating its procedure and for the conduct of its business, subject to the
provisions of the Act.
A Financial Bill could be introduced only “on the recommendation of the
Governor-General”. Section 41 provided a general immunity from judicial
review on the “ground of any alleged irregularity of procedure”:
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“41(1). The validity of any proceedings in the Federal

Legislature shall not be called in question on the ground of
any alleged irregularity of procedure.
(2) No officer or other member of the Legislature in whom
powers are vested by or under this Act for regulating
procedure or the conduct of business, or for maintaining
order, in the Legislature shall be subject to the jurisdiction of
any court in respect of the exercise by him of those powers.”
The Constituent Assembly evidently had these legislative precedents relating
to Money Bills which it would have considered while formulating its drafts.
65 While the proceedings of the Constituent Assembly were in motion, Sir
B N Rau, as its constitutional advisor, prepared a memorandum of the Draft
Constitution for the Union Constitution Committee. It envisaged a Parliament
of the Union consisting of the President and two Houses—the Senate and the
House of Representatives.83 One of the proposals discussed in the meetings
of the Union Constitution Committee was that “Money Bills would originate in
the House of the People and the power of the other House would be limited to
making suggestions for amendment, which the House of the People could
accept or reject”.84 B Shiva Rao has recorded what transpired during the
course of the proceedings of the Constituent Assembly:
“The Draft also included provisions regarding legislative

procedure, procedure in financial matters and general
procedure for the conduct of business. No Bill could be
submitted for the President’s assent unless it had been
passed in identical form by both Houses. Except in the case
of Money Bills, both Houses enjoyed equal powers; and
difference between the two Houses were to be settled by a
majority vote in a joint sitting of both Houses convened by the
President… Money Bills were defined in the Draft as
83 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at
page 420
84 Ibid
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comprising Bills proposing the imposition or increase of any

tax, regulating the borrowing of money by the Government of
India or the giving of financial guarantees, or declaring any
item of expenditure as ‘‘charged” on the revenues, i.e. placing
it outside the vote of the House of the People. The general
principle approved by the Constituent Assembly was that
financial control over the executive would' be - exercised by
the House of the People. Accordingly the Draft provided that
Money Bills could originate only in that House. The powers of
the Council of States in the case of Money Bills were
restricted to making suggestions for amendment. If these
suggestions were, not accepted by the House of the People,
or if the Council of States did not return a Bill within thirty
days with its suggestions for amendment, the Bill would be
‘deemed to have been' passed by both Houses in the form in
which it was passed' by the House of the People” and
submitted to the President for his assent’.”85
66 The draft prepared by the Constitutional Advisor provided a definition of
a Money Bill, which was inspired by Section 37 of the Government of India
Act 1935, Section 53 of the Commonwealth of Australia Constitution Act
190086 and Article 22 of the Constitution of Ireland 1937.87 Article 75 of this
draft of the Constitution provided that “if any question arises whether a Bill is a
‘money bill’ or not, the decision of the Speaker of the House of the People
thereon shall be final.”88 Neither Section 37 of the Government of India Act
1935 nor Section 53 of the Commonwealth of Australia Constitution Act 1900

86 The said provision provides: “Powers of the Houses in respect of legislation.
Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a
proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its
containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand
or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may
not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the
ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase
any proposed charge or burden on the people. The Senate may at any stage return to the House of
Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or
amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any
of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate
shall have equal power with the House of Representatives in respect of all proposed laws.”
87 B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian Institution of Public
Administration (2012), at page 32, as quoted in Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial
Review and Money Bills, NUJS Law Review (2017)
88 Ibid
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has a similar provision which accords legal finality to the decision of the
Speaker. The draft provision was similar to Article 22 of the Constitution of
Ireland 1937, which provides:
“1. The Chairman of Dáil Éireann89 shall certify any Bill

which, in his opinion, is a Money Bill to be a Money Bill,
and his certificate shall, subject to the subsequent
provisions of this section, be final and conclusive.
2. Seanad Éireann90, by a resolution, passed at a sitting at
which not less than thirty members are present, may request
the President to refer the question whether the Bill is or is not
a Money Bill to a Committee of Privileges.
3. If the President after consultation with the Council of State
decides to accede to the request he shall appoint a
Committee of Privileges consisting of an equal number of
members of Dáil Éireann and of Seanad Éireann and a
Chairman who shall be a Judge of the Supreme Court: these
appointments shall be made after consultation with the
Council of State. In the case of an equality of votes but not
otherwise the Chairman shall be entitled to vote.
4. The President shall refer the question to the Committee of
Privileges so appointed and the Committee shall report its
decision thereon to the President within twenty-one days after
the day on which the Bill was sent to Seanad Éireann.
5. The decision of the Committee shall be final and
conclusive.
6. If the President after consultation with the Council of State
decides not to accede to the request of Seanad Éireann, or if
the Committee of Privileges fails to report within the time
hereinbefore specified the certificate of the Chairman of Dáil
Éireann shall stand confirmed.” (Emphasis supplied)
67 The draft prepared by the Advisor to the Constituent Assembly did not
adopt the above provision in its entirety. It adopted the part on the finality of
the certification of the Speaker on whether a Bill is a Money Bill. The Irish
model of dispute resolution, which provided for a mechanism to review the
Speaker’s certification, was not adopted.
89 Lower House in Ireland

90 Upper House in Ireland
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Subsequently, in its report submitted to the President of the Constituent
Assembly on 5 December 1947, the Expert Committee on Financial
Provisions suggested an amendment to the draft provision, to the effect that:
“When a Money Bill is sent from the Lower House to the

Upper, a certificate of the Speaker of the Lower House saying
that it is a Money Bill should be attached to, or endorsed on,
the bill and a provision to that effect should be made in the
Constitution on the lines of the corresponding provision in the
Parliament Act, 1911. This will prevent controversies
about the matter outside the Lower House.”91 (Emphasis
supplied)
Certification of any Bill by the Speaker of the Lower House as a Money Bill,
was envisaged for procedural simplicity to avoid causing confusion in the
Upper House of Parliament.
68 The final provision which has assumed the form of Article 110 of the
Constitution, does not contain the exact language used in the Act of 1911.
The 1911 Act of the British Parliament consciously excluded judicial review of
the certificate of the Speaker of the House of Commons. The intention of the
British Parliament is clear from the specific language used in Section 3 of the
Act. Section 3 accords finality to the decision of the Speaker by providing that
any certificate of the Speaker of the House of Commons “shall be conclusive
for all purposes, and shall not be questioned in any court of law”. The
certification of the Speaker is both conclusive and immune from judicial
review. The framers of the Indian Constitution did not adopt this language.
91 B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian Institution of Public
Administration, at page 281
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Rather, they chose to adopt the phrase “shall be final”. The phrase used in the
Act of 1911 expressly excluded courts from exercising their power of judicial
review over the decision of the Speaker of the House of Commons. This
language was used in the 1911 Act to put an end to the constitutional
skirmishes experienced by the House of Lords and the House of Commons in
Britain for more than five hundred years, leading to the enactment of the 1911
Act.92 The deviation from incorporating the language, used in the 1911 Act,
into the Indian Constitution is reflective of the intention of our Constitution
makers that they did not want to confer the same status on the power
assigned to the Speaker of the Lok Sabha, as is provided to the Speaker of
the House of Commons. Had their intention been otherwise, they would have
used the same language as that provided under the 1911 Act. Finality would
operate as between the Houses of Parliament. It did not exclude judicial
review by a constitutional Court.
69 The British legal system adopts the principle of parliamentary
sovereignty. That is not so in India. Ours is a system founded on the
supremacy of the Constitution. Judicial review is an essential component of
constitutional supremacy. A Constitution Bench of this Court in Kalpana
Mehta v Union of India93 has, while noticing this distinction, held:
“…The fundamental difference between the two systems lies

in the fact that parliamentary sovereignty in the Westminster
form of government in the UK has given way, in the Indian
Constitution, to constitutional supremacy. Constitutional
92 Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, NUJS Law Review (2017)
93 (2018) 7 SCC 1
115
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supremacy mandates that every institution of governance is

subject to the norms embodied in the constitutional text. The
Constitution does not allow for the existence of absolute
power in the institutions which it creates. Judicial review as a
part of the basic features of the Constitution is intended to
ensure that every institution acts within its bounds and
limits.”94
70 The purpose of judicial review is to ensure that constitutional principles
prevail in interpretation and governance. Institutions created by the
Constitution are subject to its norms. No constitutional institution wields
absolute power. No immunity has been attached to the certificate of the
Speaker of the Lok Sabha from judicial review, for this reason. The
Constitution makers have envisaged a role for the judiciary as the expounder
of the Constitution. The provisions relating to the judiciary, particularly those
regarding the power of judicial review, were framed, as Granville Austin
observed, with “idealism”95. Courts of the country are expected to function as
guardians of the Constitution and its values. Constitutional courts have been
entrusted with the duty to scrutinize the exercise of power by public
functionaries under the Constitution. No individual holding an institutional
office created by the Constitution can act contrary to constitutional
parameters. Judicial review protects the principles and the spirit of the
Constitution. Judicial review is intended as a check against arbitrary conduct
of individuals holding constitutional posts. It holds public functionaries
accountable to constitutional duties. If our Constitution has to survive the
vicissitudes of political aggrandisement and to face up to the prevailing
94 Ibid, at para 227

95 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 205
116
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cynicism about all constitutional institutions, notions of power and authority
must give way to duties and compliance with the rule of law. Constitutional
institutions cannot be seen as focal points for the accumulation of power and
privilege. They are held in trust by all those who occupy them for the moment.
The impermanence of power is a sombre reflection for those who occupy
constitutional offices. The Constitution does not contemplate a debasement of
the institutions which it creates. The office of the Speaker of the House of
People, can be no exception. The decision of the Speaker of the Lok Sabha in
certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its
compliance with constitutional principles. Nor can such a decision of the
Speaker take leave of constitutional morality.
71 Our Constitution does not provide absolute power to any institution. It
sets the limits for each institution. Our constitutional scheme envisages a
system of checks and balances. The power of the Speaker of the Lok Sabha,
to decide whether a Bill is a Money Bill, cannot be untrammelled. The
contention that the decision of Speaker is immune from judicial review and
cannot be questioned, is contrary to the entire scheme of the Constitution,
which is premised on transparency, non-arbitrariness and fairness. The
phrase “shall be final” used in Article 110(3) has been adopted, as mentioned
earlier, from Article 22 of the Irish Constitution. The provisions of Article 22 of
the Irish Constitution provide a mechanism for review of the certificate issued
by the Speaker. Recourse is provided under the Irish Constitution by which
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PART E
the members of the Upper House of the Irish Parliament can request the
President of Ireland to refer the question of whether a Bill is a Money Bill, to a
Committee of Privileges. If the President refers the question to this
Committee, the decision of the Committee stands “final and conclusive”. The
members of the Constituent Assembly did not adopt this mechanism. Absence
of this mechanism does not mean that the decision of the Speaker of the Lok
Sabha cannot be subject to checks and balances, of which judicial review is
an indispensable facet. The Speaker has to act within the domain, which the
Constitution accords to the office of the Speaker. The power conferred on the
Speaker of the Lok Sabha cannot be exercised arbitrarily, for it could damage
the scheme of the Constitution. Judicial review is the ultimate remedy to
ensure that the Speaker does not act beyond constitutional entrustment.
72 The scope of the phrase “shall be final” can also be understood by
looking at the proceedings of the Constituent Assembly. The constitutional
foundation of Article 110(4) is based upon a suggestion of the Expert
Committee on Financial Provisions that when a Money Bill is transmitted from
the Lower House to the Upper House, it should be endorsed by the Speaker’s
certificate, so as to prevent any controversy “about the matter outside the
Lower House”. Therefore, the finality provided to the decision of the Speaker
as to whether a Bill is a Money Bill or not, is aimed at avoiding any
controversy on the issue in the Rajya Sabha and before the President. Had it
been intended to prevent the court from adjudicating upon the validity of the
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decision of the Speaker, the language of the Article would have made it
explicit. Where a constitutional provision evinces a specific intent to exclude
judicial review, clear words to that effect are used. Articles 243O(a) 96,
243ZG(a)97 and 329(a) specifically use the phrase − “shall not be called in
question in any court”. For instance, Article 329(a) provides thus:
“Notwithstanding anything in this Constitution —

(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under article
327 or article 328, shall not be called in question in any
court.” (Emphasis supplied)
73 In N P Ponnuswami v Returning Officer, Namakkal Constituency,
Namakkal, Salem District98, a six judge Bench of this Court, while construing
the provisions of Article 329, compared it to the preceding Articles, and held
thus:
“5…A notable difference in the language used in articles 327

and 328 on the one hand, and article 329 on the other, is that
while the first two articles begin with the words “subject to the
provisions of this Constitution”, the last article begins with the
words “notwithstanding anything in this Constitution”. It was
conceded at the Bar that the effect of this difference in
language is that whereas any law made by Parliament under
article 327, or by the State Legislature under article 328,
cannot exclude the jurisdiction of the High Court under article
226 of the Constitution, that jurisdiction is excluded in regard
to matters provided for in article 329.”99
96 Article 243O(a), which is a part of the chapter on Panchayats, provides: “Notwithstanding anything in this
Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any
court.”
97 Article 243ZG(a), which is a part of the chapter on Municipalities, provides: “Notwithstanding anything in this
Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in
any court.”
98 1952 SCR 218
99 Ibid, at para 5
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74 In order to understand the scope of the finality attached to the
Speaker’s decision under Article 110(3), it would be useful to analyse how in
the case of other constitutional provisions, the words “shall be final” have been
interpreted by this Court. Articles 217(3)100, 311(3)101 and paragraph 6(1) of
the Tenth Schedule102 contain the phrase “shall be final”. In Union of India v
Jyoti Prakash Mitter103, this Court held that it can examine the legality of an
order passed by the President on the determination of the age of a Judge of
the High Court under Article 217 (3) of the Constitution. The six judge Bench
held:
“32…The President acting under Article 217(3) performs a

judicial function of grave importance under the scheme of our
Constitution. He cannot act on the advice of his Ministers.
Notwithstanding the declared finality of the order of the
President the Court has jurisdiction in appropriate cases to
set aside the order, if it appears that it was passed on
collateral considerations or the rules of natural justice were
not observed, or that the President's judgment was coloured
by the advice or representation made by the executive or it
was founded on no evidence…Appreciation of evidence is
entirely left to the President and it is not for the Courts to hold
that on the evidence placed before the President on which the
conclusion is founded, if they were called upon to decide the
case they would have reached some other conclusion.”104
The President was held to perform a judicial function in making a
determination under Article 217(3).

100 Article 217 (3) states: “If any question arises as to the age of a Judge of a High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the decision of the President
shall be final.”
101 Article 311(3) states: “If, in respect of any such person as aforesaid, a question arises whether it is reasonably
practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered
to dismiss or remove such person or to reduce him in rank shall be final.”
102 Paragraph 6(1) states “If any question arises as to whether a member of a House has become subject to
disqualification under this Schedule, the question shall be referred for the decision of the Chairman, or, as the
case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House
has become subject to such disqualification, the question shall be referred for the decision of such member of
the House as the House may elect in this behalf and his decision shall be final.”
103 (1971) 1 SCC 396
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The question of finality under Article 311(3) was dealt with by a Constitution
Bench of this Court in Union of India v Tulsiram Patel105. The Court held that
the finality given to the decision of the disciplinary authority by Article 311(3)
that it is not reasonably practicable to hold an enquiry, is not binding upon the
Court so far as its power of judicial review is concerned.
The constitutional validity of the provisions contained in the Tenth Schedule to
the Constitution came up for consideration before a Constitution Bench of this
Court in Kihoto Hollohan v Zachillhu106. The Constitution Bench held that
the power vested in the Speaker or the Chairman under the Schedule, is a
judicial power, and was amenable to judicial review:
“111…That Paragraph 6(1) of the Tenth Schedule, to the

extent it seeks to impart finality to the decision of the
Speakers/Chairmen is valid. But the concept of statutory
finality embodied in Paragraph 6(1) does not detract from
or abrogate judicial review under Articles 136, 226 and
227 of the Constitution in so far as infirmities based on
violations of constitutional mandates, mala fides, non-
compliance with Rules of Natural Justice and perversity,
are concerned.”107 (Emphasis supplied)
The Bench had also clarified that:
“101…The principle that is applied by the courts is that in

spite of a finality clause it is open to the court to examine
whether the action of the authority under challenge is ultra
vires the powers conferred on the said authority. Such an
action can be ultra vires for the reason that it is in
contravention of a mandatory provision of the law conferring
on the authority the power to take such an action. It will also
be ultra vires the powers conferred on the authority if it is
105 (1985) 3 SCC 398

106 (1992) Supp (2) SCC 651
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vitiated by mala fides or is colourable exercise of power

based on extraneous and irrelevant considerations...”108
Undoubtedly, the finality clauses contained in Article 217(3), 311(3) and in
paragraph 6(1) of the Tenth Schedule were held not to exclude judicial review
since the essential nature of the power is judicial. A constitutional function is
entrusted to the Speaker to certify a Bill as a Money Bill under Article 110(3),
to which the attributes of a judicial power do not apply. Indeed, the power
which is entrusted to the Speaker under Article 110(3) is integral to the
legislative process. But, the fact that the authority which a constitutional
functionary exercises is not of a judicial character, is not sufficient to lead to
the conclusion that a finality clause governing the exercise of that power
makes it immune from judicial review. Where the entrustment of the power is
subject to the due fulfilment of constitutional norms, the exercise of jurisdiction
is amenable to judicial review, to the extent necessary to determine whether
there has been a violation of a constitutional mandate. The nature and extent
of judicial review would undoubtedly vary from a situation where finality has
been attached to a judicial, administrative or quasi-judicial power. However, a
clause on finality notwithstanding, it is open to the constitutional court to
determine as to whether there has been a violation of a constitutional mandate
as a result of which the decision suffers from a constitutional infirmity. The
entrustment of a constitutional function to the Speaker under Article 110(3) to
certify a Bill as a Money Bill is premised on the fulfilment of the norms
stipulated in Article 110(1). A certification can be questioned on the ground

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that the Bill did not fulfil the conditions stipulated in Article 110(1) to be
designated as a Money Bill. If that is established, the certification would be
contrary to constitutional mandate. Whether that is so can be judicially
scrutinized.
75 The notion that an entrustment of power is absolute has a colonial
origin. Law under a colonial regime was not just an instrument to maintain
order but was a source of subordination. Recognition of the vesting of
absolute authority was but a reflection of the premise that those who ruled
could not be questioned. Those who were ruled had to accept the authority of
the ruler. Nothing can be as divorced from constitutional principle as these
normative foundations of colonial law and history. The notion that power is
absolute is inconsistent with a Constitution which subjects the entrustment of
functions to public functionaries to the restraints which accompany it. Our law
must recognise the need to liberate its founding principles from its colonial
past. The Court should not readily accept the notion that the authority vested
in a constitutional functionary is immune from judicial review. In the absence
of a specific exclusion of judicial review, none can be implied. Moreover, any
exclusion of judicial review must be tested on the anvil of its functionality. A
specific exclusion of judicial review, in order to be valid, must serve a
constitutional function. The test of functionality must relate to whether an
exclusion of review is necessary to fulfil the overarching need for the proper
discharge of a constitutional role. Exclusion of review, to be valid, must fulfil
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the requirement of a constitutional necessity. Its purpose cannot be to shield
an excess of power from being questioned before the Court. Nor is the fact
that a power is vested in a high functionary a ground to shield it from scrutiny.
The ultimate test is whether the exclusion of judicial review is express and
specific and, whether such an exclusion is designed to achieve a
constitutional purpose that meets the test of functionality, assessed in terms of
a constitutional necessity. In the seventh decade of the republic, our
interpretation of the Constitution must subserve the need to liberate it from its
colonial detritus.
This approach was adopted by a seven judge Bench of this Court in Krishna
Kumar Singh v State of Bihar109. While interpreting the ordinance making
power of the Governor, the Court held that the interpretation of the
Constitution must be “carefully structured” to ensure that the power remains
what the framers of our Constitution intended it to be. The Bench held:
“91…The issue which needs elaboration is whether an

ordinance which by its very nature has a limited life can bring
about consequences for the future (in terms of the creation of
rights, privileges, liabilities and obligations) which will enure
beyond the life of the ordinance. In deciding this issue, the
court must adopt an interpretation which furthers the
basic constitutional premise of legislative control over
ordinances. The preservation of this constitutional value
is necessary for parliamentary democracy to survive on
the sure foundation of the Rule of law and collective
responsibility of the executive to the legislature. The
silences of the Constitution must be imbued with
substantive content by infusing them with a meaning
which enhances the Rule of law. To attribute to the
executive as an incident of the power to frame ordinances, an
unrestricted ability to create binding effects for posterity would
109 (2017) 3 SCC 1
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set a dangerous precedent in a parliamentary democracy.

The court's interpretation of the power to frame ordinances,
which originates in the executive arm of government, cannot
be oblivious to the basic notion that the primary form of law
making power is through the legislature...”110 (Emphasis
supplied)
The ordinance making power was held to be an exceptional power to meet a
“constitutional necessity”.
76 The marginal note to Article 122 is: “Courts not to inquire into
proceedings of Parliament”. The Article reads thus:
“122. (1) The validity of any proceedings in Parliament shall

not be called in question on the ground of any alleged
irregularity of procedure.
(2) No officer or member of Parliament in whom powers are
vested by or under this Constitution for regulating procedure
or the conduct of business, or for maintaining order, in
Parliament shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers.”
This Court must deal with the question whether the Speaker’s decision under
Article 110(3) is protected by Article 122. Article 122 prohibits courts from
examining the validity of any proceedings in Parliament on the ground that
there was “any alleged irregularity of procedure”. The content of the
expression “procedure” referred to in the Article, is indicated in Article 118 of
the Constitution. The marginal note to Article 118 provides for “Rules of
procedure”. Article 118 provides as follows:
“118. (1) Each House of Parliament may make rules for

regulating, subject to the provisions of this Constitution,
its procedure and the conduct of its business.
(2) Until rules are made under clause (1), the rules of
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procedure and standing orders in force immediately before

the commencement of this Constitution with respect to the
Legislature of the Dominion of India shall have effect in
relation to Parliament subject to such modifications and
adaptations as may be made therein by the Chairman of the
Council of States or the Speaker of the House of the People,
as the case may be.
(3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the
People, may make rules as to the procedure with respect to
joint sittings of, and communications between, the two
Houses.
(4) At a joint sitting of the two Houses the Speaker of the
House of the People, or in his absence such person as may
be determined by rules of procedure made under clause (3),
shall preside.” (Emphasis supplied)
77 Articles 118 to 122 are covered under the rubric of the general heading-
“Procedure Generally”. Article 118 provides for rules to be made by each
House of Parliament for regulating the procedure and conduct of its business.
The Article subjects these contemplated rules to the provisions of the
Constitution. The provision does not indicate that these rules will stand above
the Constitution. They are, on the contrary, subject to the Constitution. The
rules framed under Article 118, are procedural in nature. The procedure
contemplated under Articles 118 to 122 is distinct from substantive
constitutional requirements. The obligation placed on the Speaker of the Lok
Sabha to certify whether a Bill is a Money Bill is not a mere matter of
“procedure” contemplated under Article 122. It is a constitutional requirement,
which has to be fulfilled according to the norms set out in Article 110. Article
122 will not save the action of the Speaker, if it is contrary to constitutional
norms provided under Article 110. The Court, in the exercise of its power of
judicial review, can adjudicate upon the validity of the action of the Speaker if
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it causes constitutional infirmities. Article 122 does not envisage exemption
from judicial review, if there has been a constitutional infirmity. The
Constitution does not endorse a complete prohibition of judicial review under
Article 122. It is only limited to an “irregularity of procedure”.
78 This Court has on several occasions restricted the scope of the bar
provided under Article 122 (and under corresponding Article 212 for the
States) and has distinguished an “irregularity of procedure” from “illegality”. In
Special Reference No. 1 of 1964111, a seven judge Bench of this Court
brought home that distinction in the context of Article 212(1) with the following
observations:
“61…Article 212(2) confers immunity on the officers and

members of the Legislature in whom powers are vested by or
under the Constitution for regulating procedure or the conduct
of business, or for maintaining order, in the Legislature from
being subject to the jurisdiction of any court in respect of the
exercise by him of those powers. Art. 212(1) seems to make it
possible for a citizen to call in question in the appropriate
court of law the validity of any proceedings inside the
legislative chamber if his case is that the said proceedings
suffer not from mere irregularity of procedure, but from
an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinised in a
court of law, though such scrutiny is prohibited if the
complaint against the procedure is no more than this that
the procedure was irregular...” (Emphasis supplied)
In Ramdas Athawale v Union of India112 (“Ramdas Athawale”), a
Constitution Bench of this Court extended the above formulation to Article 122
of the Constitution:
111 AIR 1965 SC 745

112 (2010) 4 SCC 1
127
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“36.This Court Under Article 143, Constitution of India, In re

(Special Reference No. 1 of 1964) [AIR 1965 SC 745 : (1965)
1 SCR 413] (also known as Keshav Singh case [AIR 1965 SC
745 : (1965) 1 SCR 413] ) while construing Article 212(1)
observed that it may be possible for a citizen to call in
question in the appropriate Court of law, the validity of any
proceedings inside the Legislature if his case is that the said
proceedings suffer not from mere irregularity of procedure,
but from an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinized in a Court
of law, though such scrutiny is prohibited if the complaint
against the procedure is no more than this that the procedure
was irregular. The same principle would equally be applicable
in the matter of interpretation of Article 122 of the
Constitution.”113
A Constitution Bench of this Court reaffirmed the distinction between a
“procedural irregularity” and an “illegality” in Raja Ram Pal v Hon'ble
Speaker, Lok Sabha114 (“Raja Ram Pal”). The Bench held that courts are
not prohibited from exercising their power of judicial review to examine any
illegality or unconstitutionality in the procedure of Parliament:
“386…Any attempt to read a limitation into Article 122 so as

to restrict the court's jurisdiction to examination of the
Parliament's procedure in case of unconstitutionality, as
opposed to illegality would amount to doing violence to the
constitutional text. Applying the principle of “expressio unius
est exclusio alterius” (whatever has not been included has by
implication been excluded), it is plain and clear that
prohibition against examination on the touchstone of
"irregularity of procedure" does not make taboo judicial
review on findings of illegality or unconstitutionality…115
398… the Court will decline to interfere if the grievance

brought before it is restricted to allegations of “irregularity of
procedure”. But in case gross illegality or violation of
constitutional provisions is shown, the judicial review will not
be inhibited in any manner by Article 122, or for that matter by
Article 105.”116

114 (2007) 3 SCC 184
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The Court distinguished the constitutional background in India from that of
England, holding that while England has adopted a regime of exclusive
parliamentary dominance, India is governed by a system of checks and
balances provided in the Constitution:
“366.The touchstone upon which Parliamentary actions within

the four-walls of the Legislature were examined was both the
constitutional as well as substantive law. The proceedings
which may be tainted on account of substantive illegality
or unconstitutionality, as opposed to those suffering
from mere irregularity thus cannot be held protected
from judicial scrutiny by Article 122(1) in as much as the
broad principle laid down in Bradlaugh [(1884) 12 QBD 271]
acknowledging exclusive cognizance of the Legislature in
England has no application to the system of governance
provided by our Constitution wherein no organ is
sovereign and each organ is amenable to constitutional
checks and controls, in which scheme of things, this
Court is entrusted with the duty to be watchdog of and
guarantor of the Constitution.”117 (Emphasis supplied)
The principle which emerges from these decisions is that the decision of the
Speaker is amenable to judicial review, if it suffers from illegality or from a
violation of constitutional provisions.
79 The Attorney General advanced the submission that this Court has on
previous occasions refrained from scrutinizing the decision of the Speaker on
whether a Bill is a Money Bill. Those decisions require discussion for
adjudicating the present case. In Mangalore Ganesh Beedi Works v State of
Mysore118 (“Mangalore Beedi”), a new system of coinage was introduced by
amending the Indian Coinage Act. Under the new system, while one rupee

118 1963 Supp (1) SCR 275
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was divided into a hundred naya paisas, the old legal tender of sixteen annas
or sixty four pice remained legal tender equivalent to one hundred naya
paisas. The appellant, which was a firm registered under the Mysore Sales
Tax Act, had to pay an additional amount as sales tax due to change in the
currency. It was argued that by the substitution of 2 naya paisas (the new
currency) in place of 3 pies (the old currency) as tax, there was a change in
the tax imposed by the Mysore Sales Tax Act, which could only have been
done by passing a Money Bill under Articles 198, 199 and 207 of the
Constitution and since no Money Bill was introduced or passed for the
enhancement of the tax, the tax was illegal and invalid. The contention,
therefore, was that the procedure envisaged for passing a Money Bill ought to
have been, but was not, followed. The Constitution Bench dismissed the
appeal, holding that the substitution of a new coinage i.e. naya paisas in place
of annas, pice and pies did not amount to an enhancement of tax. It was held
to be merely a substitution of one coinage by another of equivalent value. This
Court held that the levy of tax in terms of naya paisas was not unconstitutional
nor was it a taxing measure but it dealt merely with the conversion of the old
coinage into new coinage. Having held this, the Bench also remarked:
“5…Even assuming that it is a taxing measure its validity

cannot be challenged on the ground that it offends Arts. 197
to 199 and the procedure laid down in Art. 202 of the
Constitution. Article 212 prohibits the validity of any
proceedings in a legislature of a State from being called in
question on the ground of any alleged irregularity of
procedure and Art. 255 lays down that requirements as to
recommendation and previous sanction are to be regarded as
matters of procedure only...”
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The Court having found that a substitution of coinage did not result in an
enhancement of tax, Article 199 was not attracted. The legislative measure
was not a Money Bill. Once that was the case, the subsequent observations
(extracted above) proceeded on an assumption: that even if it were a taxing
measure, it would be saved by Article 255. The court having held that no
enhancement of tax was involved in a mere substitution of coinage, the
alternative hypothesis is not a part of the ratio and was unnecessary. The ratio
was that substitution of a new coinage did not amount to a Money Bill. The
decision of the Constitution Bench in Mangalore Beedi dealt with the
contention that a Money Bill was unconstitutionally passed as an ordinary Bill.
The Bench held that substitution of coinage did not make it a Money Bill. The
decision contains a general observation regarding the immunity of
proceedings in a state legislature. A scholarly article119 has correctly referred
to the general remarks made in Mangalore Beedi as unnecessary and not the
ratio since the issue was already decided on merits, by holding that the
substitution of coinage was not an enhancement of tax.
80 A three judge Bench of this Court in Mohd Saeed Siddiqui v State of
Uttar Pradesh120 (“Mohd Saeed Siddiqui”) dealt with the constitutional
validity of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act,
2012. Section 5(1) of the unamended Act provided a term of six years for the
Lokayukta. Section 5(3) provided that on ceasing to hold office, the Lokayukta
119 Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, Vol 10, NUJS Law Review
(2017).
120 (2014) 11 SCC 415
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or Up-Lokayukta shall be ineligible for further appointment. The new State
government, which came in office, introduced a Bill which was passed as the
Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012, by
which the term of the U.P. Lokayukta and Up-Lokayukta was extended from
six years to eight years or till the successor enters upon office. The
Amendment Act also limited the ineligibility of the Lokayuktas or Up-
Lokayuktas for further appointment under the Government of Uttar Pradesh.
The Amendment Act was challenged on the ground that it was passed as a
Money Bill when, on the face of it, it could never have been called a Money
Bill under Article 199 of the Constitution. The Bench rejected the petition
holding that the question “whether a Bill is a Money Bill or not can be raised
only in the State Legislative Assembly by a member thereof when the Bill is
pending in the State Legislature and before it becomes an Act”. It relied upon
the observations made in Mangalore Beedi, to formulate following principles:
“(i) the validity of an Act cannot be challenged on the ground

that it offends Articles 197 to 199 and the procedure laid
down in Article 202; (ii) Article 212 prohibits the validity of any
proceedings in a Legislature of a State from being called in
question on the ground of any alleged irregularity of
procedure; and (iii) Article 255 lays down that the
requirements as to recommendation and previous sanction
are to be regarded as a matter of procedure only. It is further
held that the validity of the proceedings inside the Legislature
of a State cannot be called in question on the allegation that
the procedure laid down by the law has not been strictly
followed and that no Court can go into those questions which
are within the special jurisdiction of the Legislature itself,
which has the power to conduct its own business.”
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PART E
The judgment also made a reference to the seven judge Bench decision in
Pandit MSM Sharma v Dr Shree Krishna Sinha121 (“MSM Sharma”).
The “proceedings of the Legislature” were held to include “everything said or
done in either House” in the transaction of parliamentary business. Relying
upon Articles 212 and 255, the Bench accorded finality to the decision of the
Speaker:
“43. As discussed above, the decision of the Speaker of the

Legislative Assembly that the Bill in question was a Money
Bill is final and the said decision cannot be disputed nor can
the procedure of the State Legislature be questioned by virtue
of Article 212. Further, as noted earlier, Article 255 also
shows that under the Constitution the matters of procedure do
not render invalid an Act to which assent has been given to
by the President or the Governor, as the case may be.
Inasmuch as the Bill in question was a Money Bill, the
contrary contention by the Petitioner against the passing of
the said Bill by the Legislative Assembly alone is
unacceptable.”122
Making a passing reference to the decision of the Constitution Bench in Raja
Ram Pal, the Bench opined that even if it is established that there was some
infirmity in the procedure in the enactment of the Amendment Act, it will be
protected by Article 255 of the Constitution.
81 Subsequently, a two judge Bench of this Court in Yogendra Kumar
Jaiswal v State of Bihar123 (“Yogendra Kumar”) dealt with the constitutional
validity of the Orissa Special Courts Act, 2006. The law was enacted by the
121 AIR 1960 SC 1186

122 Mohd Saeed Siddiqui, Ibid, at page 430
123 (2016) 3 SCC 183
133
PART E
State legislature, keeping in view the accumulation of properties
disproportionate to their known sources of income by persons who have held
or hold high political and public offices. The legislature provided special courts
for speedy trial of certain classes of offences and for confiscation of
properties. The appellants, who were public servants and facing criminal
cases, challenged the Act on the ground that it was introduced in the State
Assembly as a Money Bill though it did not have any characteristics of a
Money Bill under Article 199 of the Constitution. The Court dismissed the
petitions, following the decision in Mohd Saeed Siddiqui. It held that:
“43. In our considered opinion, the authorities cited by the

learned Counsel for the Appellants do not render much
assistance, for the introduction of a bill, as has been held in
Mohd. Saeed Siddiqui (supra), comes within the concept of
“irregularity” and it does come with the realm of substantiality.
What has been held in the Special Reference No. 1 of 1964
(supra) has to be appositely understood. The factual matrix
therein was totally different than the case at hand as we find
that the present controversy is wholly covered by the
pronouncement in Mohd. Saeed Siddiqui (supra) and hence,
we unhesitatingly hold that there is no merit in the submission
so assiduously urged by the learned Counsel for the
Appellants.”124
Special Reference No. 1 of 1964 was distinguished in Yogendra Kumar.
Article 255 provides:
“No Act of Parliament or of the Legislature of a State, and no

provision in any such Act, shall be invalid by reason only that
some recommendation or previous sanction required by this
Constitution was not given, if assent to that Act was given—
(a) where the recommendation required was that of the
Governor, either by the Governor or by the President;
(b) where the recommendation required was that of the
Rajpramukh, either by the Rajpramukh or by the President;
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PART E
(c) where the recommendation or previous sanction required

was that of the President, by the President.”
82 Article 255 speaks about a situation where a “recommendation or
previous sanction” is required to be given by the Governor, Rajpramukh or, as
the case may be, by the President. The absence of a recommendation or
previous sanction will not invalidate the law, where the Act has received the
assent of the Governor or the President. Subsequent assent, in other words,
cures the absence of recommendation or sanction. Article 255 is in no way
related to the decision or certificate of the Speaker of the Lok Sabha or of the
State Legislative Assembly on whether a Bill is a Money Bill. Moreover, Article
255 does not apply to Articles 110 for the simple reason that the latter does
not embody either a previous sanction or recommendation. Article 255 does
not envisage superseding the role of the Upper House of Parliament or the
State Legislature. Mohd Saeed Siddiqui proceeds on an erroneous
understanding of Article 255. Mohd Saeed Siddiqui was followed in
Yogendra Kumar. These two judgments cite the same three articles —
Articles 199,125 212,126 and 255, to refrain from questioning the conduct of the
Speaker, without noticing that Article 255 does not apply there.
Further, MSM Sharma, which was referred in Mohd Saeed Siddiqui was
discussed in the Special Reference to hold that the validity of any
proceedings in a legislative chamber can be questioned if such proceedings
125 Corresponding provision for the Union is Article 110 of the Constitution.
126 Corresponding provision for the Union is Article 122 of the Constitution.
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PART E
suffer from illegality. The consistent thread which emerges from the judgments
in Special Reference, Ramdas Athawale and Raja Ram Pal is that the
validity of proceedings in Parliament or a State Legislature can be subject to
judicial review on the ground that there is an illegality or a constitutional
violation. Moreover, the judgment in Yogendra Kumar followed Mohd Saeed
Siddiqui. Siddiqui was based on an erroneous understanding of Mangalore
Beedi. The decision of the Speaker under Articles 110(3) and 199(3) is not
immune from judicial review.
The three judge Bench decision in Mohd Saeed Siddiqui and the two judge
Bench decision in Yogendra Kumar are overruled.
83 Barring judicial review of the Lok Sabha Speaker’s decision would
render a certification of a Bill as a Money Bill immune from scrutiny, even
where the Bill does not, objectively speaking, deal only with the provisions set
out in Article 110(1). The decision of the Speaker of the Lok Sabha whether a
Bill is a Money Bill impacts directly upon the constitutional role which will be
discharged by the Rajya Sabha in relation to it. The Lok Sabha alone does not
represent Parliament. The Indian Parliament is bicameral. The Constitution
envisages a special role for the Rajya Sabha. In order to truly understand the
relevance of the Rajya Sabha in the Indian context, an analysis of major
bicameral systems is necessary, as an exercise in comparative law.
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PART E
84 Bicameral legislatures are not unique to either the Presidential or
Parliamentary forms of government. Democracies with a Presidential form of
government have adopted bicameral legislatures, the United States being the
leading example. Among Parliamentary democracies, India and the UK have
adopted bicameral legislatures. They are predominant in federal countries.
Where second chambers exist, they vary in terms of powers and composition.
Together, their powers and composition shape the impact that they have on
legislation.127 The phenomenon of the bicameral system has two different
historic origins. It was first established in England, and later in the US.128 Both
these models have been replicated across the globe.
85 Britain developed some of the earliest institutional practices that came
to be emulated through the Western world. A separate powerful legislature
was initiated when King John in 1215 gave a written commitment to seek the
consent of Parliament to levy taxes to which he was entitled by feudal
prerogative. Over the next five centuries, the British Parliament was
transformed from an institution summoned at the desire of the ruler to one
which met on regular occasions to develop policy inclinations independent of
the wishes of the ruler.129 In the fourteenth century, Parliament was divided
into two chambers: one chamber (the House of Lords) in which debate took
place with the feudal lords and a second chamber (the House of Commons)
127 Fathali M. Moghaddam, The SAGE Encyclopaedia of Political Behaviour (2017).

128 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7
129 Abhinay Muthoo & Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in Institutions and
Economic Performance (Elhanan Helpman ed.), Harvard University Press (2008), at pages 251-252
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PART E
where the citizens were represented.130 The upper chamber of the British
Parliament, the Lords, comprised of hereditary peers (whose number varied
with the discretion of the King to create them). The lower chamber, the
Commons, represented individuals satisfying a substantial property
requirement. The two chambers in Britain reflected a kind of class division.
Before the beginning of the eighteenth century, several factors such as civil
war, regicide, experimentation with a republic, and the restoration of the titular
monarch caused power to be permanently shifted from the King to
Parliament.131
Around the same time, the British colonies in North America were crafting
institutions of their own. Colonial legislatures were being conceptualized on
similar lines, with some exceptions, to British Parliament. The Constitution for
the newly formed United States adopted a bicameral system.132 The
legislature in the United States was innovative, for it created a bicameral
arrangement that replaced a class basis (as was in existence in Britain) for
chamber representation with a modified federal basis. The Constitutional
Convention of 1787 had provided for a lower chamber, a directly-elected
House of Representatives, where each voter had an equal vote in elections,
and an upper chamber, a Senate, to which each state could send two
members, elected indirectly by the state parliaments. The Convention was a
131 Abhinay Muthoo & Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in Institutions and
Economic Performance (Elhanan Helpman ed.), Harvard University Press (2008), at page 252
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PART E
compromise between those who wanted a parliament in which the states,
irrespective of their population size, would have an equal voice, and those
who wanted a Parliament for the newly formed federal nation where the
participating states were represented in proportion to the size of their
population. A system with two differently composed chambers was ultimately
chosen to be the only way out of the deadlock.133 The rationale for a
bicameral legislature comprising of a directly elected Lower House and an
indirectly elected Upper House was best articulated by James Madison, in the
Federalist Papers:
“First… a senate, as a second branch of the legislative

assembly, distinct from, and dividing the power with, a first,
must be in all cases a salutary check on the government. It
doubles the security to the people, by requiring the
concurrence of two distinct bodies in schemes of usurpation
or perfidy, where the ambition or corruption of one would
otherwise be sufficient…
Second. The necessity of a senate is not less indicated by the
propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be
seduced by factious leaders into intemperate and pernicious
resolutions…
Third. Another defect to be supplied by a senate lies in a want
of due acquaintance with the objects and principles of
legislation. It is not possible that an assembly of men called
for the most part from pursuits of a private nature, continued
in appointment for a short time, and led by no permanent
motive to devote the intervals of public occupation to a study
of the laws, the affairs, and the comprehensive interests of
their country, should, if left wholly to themselves, escape a
variety of important errors in the exercise of their legislative
trust… A good government implies two things: first, fidelity to
the object of government, which is the happiness of the
people; secondly, a knowledge of the means by which that
object can be best attained…
Fourth. The mutability in the public councils arising from a
rapid succession of new members, however qualified they
133Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
139
PART E
may be, points out, in the strongest manner, the necessity of

some stable institution in the government…”134
Madison conceptualized that the second chamber would fulfil significant roles:
(a) it would provide the certainty that the government will not neglect its
obligations to its constituents, as the chamber provides an extra check on it;
(b) it can curb the actions of the other chamber if it gives into the urge to
follow ‘sudden and pronounced sentimental reactions’; (c) it can meet the
need for expertise in the framing of laws and the interests of the country, and
thus help to avoid legislative mistakes; and (d) it can be a factor for stability
that ensures continuity in the administration of the country.
86 Bicameralism, in both systems, emerged as a development associated
with the changing conceptions of the state. The literature on bicameralism has
highlighted the importance of having a second chamber in the legislature of a
state. William Riker has emphasized that a bicameral structure acts as a
control over the tyranny of a majority.135 Levmore similarly echoes this
thought:
“At the very least, if the two chambers consider an issue

simultaneously, one chamber’s agenda setter will be at the
mercy of the order of consideration in the second chamber.
Bicameralism can thus be understood as an antidote to the
manipulative power of the convenor, or agenda setter, when
faced with cycling preferences.”136
134 James Madison, The Federalist No. 62 – The Senate, The Federalist Papers (1788), available at
http://www.constitution.org/fed/federa62.html
135 William H. Riker, The Justification of Bicameralism, International Political Science Review (1992), Vol. 13,
Issue 1, at pages 101–16.

136 Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, International Review of Law and
Economics (1992), Vol. 12, at pages 147-148.
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PART E
A study137 commissioned by the Dutch Ministry of the Interior and Kingdom
Relations analysed the design of the bicameral system in several countries.
The study consulted constitutional texts and literature on the evolution of
bicameralism and came to the finding that:
“Historically, the creation of bicameral systems, both in the

federal and the aristocratic variant, always was a concession
to those (states or estates) who risked losing power in the
new setting. In emerging democracies, and up until the
present day, the choice of a bicameral system appears as a
means of dispelling fear about the consequences of
democratisation and reconciling established elites with the
democratisation process. In developed democracies, the
rationale of a bicameral system is now sought primarily in the
possibility of combining different systems of representation
(particularly in federal systems) and in the possibility of
reconsideration by a different chamber in the legislative,
making it possible to avoid making mistakes and enhancing
both the quality and the stability of the legislation. In majority
systems of the Westminster model - where the government is
part of the lower house and it tends to have a stable majority -
a senate moreover is sometimes ascribed the role of giving
more independent input into the parliamentary work, less
determined by party discipline, and of paying more attention
to the interests of minorities. A bicameral system is, for that
reason, sometimes recommended as a means to protect
minorities against a tyranny of the majority… Finally, a
bicameral system may also increase efficiency because it is
possible to divide the legislative workload between two
chambers. That can be the case when the two chambers
absorb a sort of division of labour (e.g. an emphasis on
technical legal quality in the senate). In many bicameral
systems, moreover, it can be decided to put bills to either
house, and the senate also has a right of initiative.”138
87 The importance of the second chamber increases when there is no
single party rule in Parliament. Governments that lack Upper-House majority
Relations- Netherlands (2015).
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PART E
support find it difficult to pass Bills.139 Elliot Bulmer notes pertinently that in a
democracy, a second chamber addresses the inability of the elected chamber
to adequately represent a diverse society. In this view, a second chamber
may enable a “more nuanced and complete representation of society, with
greater representation for territorial, communal or other minorities”.140
While discussing the advantage of second chambers in republican
legislatures, Rogers observes that the institution of a second chamber
generates legislative advantage only “if the chambers differ significantly from
one another”.141 Quoting from the work of various scholars, he observes:
“Hammond and Miller find that “The stability-inducing

properties of bicameralism are . . . dependent on the
existence of distinctly different viewpoints in the two
chambers”… Buchanan and Tullock conclude similarly that,
“unless the bases for representation are significantly different
in the two houses, there would seem to be little excuse for the
two-house system”… Because two “congruent” chambers
would ostensibly not significantly affect policy outcomes,
Lijphart described bicameral systems with congruent
chambers as “weak” forms of bicameralism…”142
88 Bicameralism, when entrenched as a principle in a constitutional
democracy, acts as a check against the abuse of power by constitutional
means or its use in an oppressive manner. As a subset of the constitutional
principle of division of power, bicameralism is mainly a safeguard against the
abuse of the constitutional and political process. A bicameral national
139 James N. Druckman & Michael F. Thies, The Importance of Concurrence: The Impact of Bicameralism on
Government Formation and Duration, American Journal of Political Science (2002), Vol. 46, No. 4, at pages
760-771.
140 Elliot Bulmer, Bicameralism, International Institute for Democracy and Electoral Assistance (2017), at page 4
141 James R. Rogers, The Advantage of Second Chambers in Republican Legislatures: An Informational Theory,
at page 6, available at https://ecpr.eu/Filestore/PaperProposal/beb20221-c2c5-4475-9b9f-74bb3f1512a7.pdf

142 Ibid
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PART E
parliament can hold the government accountable and can check or restrain
the misuse of government power. Among its other roles is that of representing
local state units, acting as a body of expert review, and providing
representation for diverse socio-economic interests or ethno-cultural
minorities.
While deliberating over the necessity of having a second chamber, the
Constituent Assembly had the benefit of examining the constitutional history
of several other nations. The constitutional advisor, B N Rau, found the issue
of second chambers to be “one of the most vexing questions of political
science”.143 Under colonial rule, bicameralism had already been introduced.
The first bicameral legislature as the national assembly for India was
established by the Government of India Act 1919. The Government of India
Act, 1935 had created an Upper House in the federal legislature which
consisted of members elected by the provincial legislatures as well as
representatives sent by numerous princely states that were not under the
direct control of the British government. The 1935 Act became the blueprint
for the structure of Parliament in the new Constitution. The Rajya Sabha, as
the Upper House of the Parliament, was adopted into the Constitution. The
vision of the Constitution makers behind the establishment of the Upper
House of Parliament has found expression in the classic work of Granville
Austin:
143Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page
195
143
PART E
“The members of the Constituent Assembly had one

predominant aim when framing the Legislative provisions of
the Constitution: to create a basis for the social and political
unity of the country… The goals of the Constituent
Assembly… were to bring popular opinion into the halls of
government, and, by the method of bringing it there, to show
Indians that although they were many peoples, they were but
one nation.”144
89 Article 80 of the Constitution deals with the composition of the Rajya
Sabha. The maximum strength of this chamber is 250 members, out of which
up to 238 members are elected representatives from the states and union
territories. 12 members are nominated by the President among persons with
a special knowledge or practical experience in literature, science, art and
social service. Members representing the states are elected by the state
legislatures through proportional representation by means of a single
transferable vote145. The method of electing representatives from Union
territories has been left to prescription by Parliament.146 In a departure from
the American model of equal representation for the states, the allocation of
seats in the Rajya Sabha to the States and Union territories is in accordance
with the division provided in the Fourth Schedule of the Constitution (read with
Articles 4(1) and 80(2)). The reason behind this division of seats is “to
safeguard the interests of the smaller states while at the same time ensuring
the adequate representation of the larger states, so that the will of the
representatives of a minority of the electorate does not prevail over that of
144 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at pages
180 & 203
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PART E
those who represented the majority”147. In this sense, the Rajya Sabha has a
special structure.
90 The institutional structure of the Rajya Sabha has been developed to
reflect the pluralism of the nation and its diversity of language, culture,
perception and interest. The Rajya Sabha was envisaged by the makers of
the Constitution to ensure a wider scrutiny of legislative proposals. As a
second chamber of Parliament, it acts as a check on hasty and ill-conceived
legislation, providing an opportunity for scrutiny of legislative business. The
role of the Rajya Sabha is intrinsic to ensuring executive accountability and to
preserving a balance of power. The Upper Chamber complements the
working of the Lower Chamber in many ways. The Rajya Sabha acts as an
institution of balance in relation to the Lok Sabha and represents the federal
structure148 of India. Both the existence and the role of the Rajya Sabha
constitute a part of the basic structure of the Constitution. The architecture of
our Constitution envisions the Rajya Sabha as an institution of federal
bicameralism and not just as a part of a simple bicameral legislature. Its
nomenclature as the ‘Council of States’ rather than the ‘Senate’ appropriately
justifies its federal importance.149 Seervai has observed that the federal
principle is dominant in our Constitution. While adverting to several of its
147 Sidharth Chauhan, Bicameralism: comparative insights and lessons, Seminar (February, 2013) available at
http://india-seminar.com/2013/642/642_sidharth_chauhan.html
148 In SR Bommai v Union of India (AIR 1994 SC 1998), a seven-judge Bench of this Court held: “Democracy and
federalism are the essential features of our Constitution and are part of its basic structure.”
149 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
page 2. See also M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat
(2001)
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federal features, Seervai emphasises the position of the Rajya Sabha as an
integral element:
“First and foremost, Parliament (the Central Legislature) is

dependent upon the States, because one of its Houses, the
Council of States, is elected by the Legislative Assemblies of
the States. Where the ruling party, or group of parties, in the
House of the People has a majority but not an overwhelming
majority, the Council of States can have a very important
voice in the passage of legislation other than financial Bills.
Secondly, a Bill to amend the Constitution requires to be
passed by each House of Parliament separately by an
absolute majority in that House and by not less than two-
thirds of those present and voting. Since the Council of States
is indirectly elected by the State Legislatures, the State
Legislatures have an important say in the amendment of the
Constitution because of the requirement of special majorities
in each House. Thirdly, the very important matters mentioned
in the proviso to Article 368 (Amendment of the Constitution)
cannot be amended unless the amendments passed by
Parliament are ratified by not less than half the number of
Legislatures of the States… Fourthly, the amendment of
Article 352 by the 44th Amendment gives the Council of
States a most important voice in the declaration of
Emergency, because a proclamation of emergency must be
approved by each House separately by majorities required for
an amendment of the Constitution… Fifthly, the executive
power of the Union is vested in the President of India who is
not directly elected by the people but is elected by an
electoral college consisting of (a) the elected members of the
Legislative Assemblies of the States and (b) the elected
members of both Houses of Parliament… Directly the State
Legislatures have substantial voting power in electing the
President; that power is increased indirectly through the
Council of States, which is elected by the Legislative
Assemblies of States.”150
91 The Rajya Sabha represents the constituent states of India. It
legitimately holds itself as the guardian of the interest of the component states
in a federal polity. It endeavours to remain concerned and sensitive to the
aspirations of the states, thereby strengthening the country’s “federal fabric”
150 H M Seervai, Constitutional Law of India, Universal Law Co. Pvt. Ltd, Vol. 1, (1991), at pages 299-300.
146
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and “promotes national integration”.151 Being the federal chamber of
Parliament, the Rajya Sabha enjoys some special powers, which are not even
available to the Lok Sabha, under the Constitution152:
“(i) Article 249 of the Constitution provides that Rajya Sabha

may pass a resolution, by a majority of not less than two-
thirds of the Members present and voting to the effect that it is
necessary or expedient in the national interest that Parliament
should make a law with respect to any matter enumerated in
the State List. Then, Parliament is empowered to make a law
on the subject specified in the resolution for the whole or any
part of the territory of India. Such a resolution remains in force
for a maximum period of one year but this period can be
extended by one year at a time by passing a further
resolution;
(ii) Under Article 312 of the Constitution, if Rajya Sabha
passes a resolution by a majority of not less than two-thirds of
the Members present and voting declaring that it is necessary
or expedient in the national interest to create one or more All
India Services common to the Union and the States,
Parliament has the power to create by law such services; and
(iii) Under the Constitution, President is empowered to issue
Proclamations in the event of national emergency (Article
352), in the event of failure of constitutional machinery in a
State (Article 356), or in the case of financial emergency
(Article 360). Normally, every such Proclamation has to be
approved by both Houses of Parliament within a stipulated
period. Under certain circumstances, however, Rajya Sabha
enjoys special powers in this regard. If a Proclamation is
issued at a time when the dissolution of the Lok Sabha takes
place within the period allowed for its approval, then the
Proclamation can remain effective if a resolution approving it,
is passed by Rajya Sabha.”
92 The Rajya Sabha is a permanent body as it is not subject to
dissolution.153 Being an indirectly elected House, it has no role in the making
or unmaking of the Government and therefore it is comparatively “free from
page 6.
152 Rajya Sabha Secretariat, Structure and Functions of Rajya Sabha Secretariat, (2009), at pages 2-3
153 Under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year terms and
one-third of the members retiring every 2 years.
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compulsions of competitive party politics”.154 As a revising chamber, the
Constitution makers envisioned that it will protect the values of the
Constitution, even if it is against the popular will. The Rajya Sabha is a symbol
against majoritarianism.
A Constitution Bench of this Court in Kuldip Nayar v Union of India155
highlighted the importance of the Rajya Sabha:
“47. The Rajya Sabha is a forum to which experienced public

figures get access without going through the din and bustle of
a general election which is inevitable in the case of Lok
Sabha. It acts as a revising chamber over the Lok Sabha. The
existence of two debating chambers means that all proposals
and programmes of the Government are discussed twice. As
a revising chamber, the Rajya Sabha helps in improving Bills
passed by the Lok Sabha...”156
93 Participatory governance is the essence of democracy. It ensures
responsiveness and transparency. An analysis of the Bills revised by the
Rajya Sabha reveals that in a number of cases, the changes recommended
by the Rajya Sabha in the Bills passed by the Lok Sabha were eventually
carried out.157 The Dowry Prohibition Bill is an example of a legislation in
which the Rajya Sabha’s insistence on amendments led to the convening of a
joint sitting158 of the two Houses and in that sitting, one of the amendments
pages 7-8
155 (2006) 7 SCC 1
page 5
158 Dr Ambedkar explained that the joint sitting had been kept at the centre because of the federal character of
the Central Legislature. See Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
University Press (1966), at page 202
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suggested by the Rajya Sabha was adopted without a division. 159 The Rajya
Sabha has a vital responsibility in nation building, as the dialogue between the
two houses of Parliament helps to address disputes from divergent
perspectives. The bicameral nature of Indian Parliament is integral to the
working of the federal Constitution. It lays down the foundations of our
democracy. That it forms a part of the basic structure of the Constitution, is
hence based on constitutional principle. The decision of the Speaker on
whether a Bill is a Money Bill is not a matter of procedure. It directly impacts
on the role of the Rajya Sabha and, therefore, on the working of the federal
polity.
94 There is a constitutional trust which attaches to the empowerment of
the Speaker of the Lok Sabha to decide whether a legislative measure is a
Money Bill. Entrustment of the authority to decide is founded on the
expectation that the Speaker of the Lok Sabha will not dilute the existence of
a co-ordinate institution in a bicameral legislature. A constitutional trust has
been vested in the office of the Speaker of the Lok Sabha. By declaring an
ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya
Sabha. This power cannot be unbridled or bereft of judicial scrutiny. If the
power of the Speaker is exercised contrary to constitutional norms, it will not
only limit the role of the Rajya Sabha, but denude the efficacy of a legislative
body created by the Constitution. Such an outcome would be inconsistent
page 5
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with the scheme of the Indian Constitution. Judicial review is necessary to
ensure that the federal features of the Constitution are not transgressed.
E.2 Aadhaar Act as a Money Bill
This Court must now deal with whether the Aadhaar Act was validly passed as
a Money Bill.
95 Article 110(1) of the Constitution defines a Money Bill. For a Bill to be a
Money Bill, it must contain “only provisions” dealing with every or any one of
the matters set out in sub-clauses (a) to (g) of clause 1 of Article 110. The
expression “if it contains only provisions dealing with all or any of the following
matters, namely...” is crucial. Firstly, the expression “if” indicates a condition
and it is only upon the condition being fulfilled that the deeming fiction of a Bill
being a Money Bill for the purposes of the Chapter will arise. Secondly, to be a
Money Bill, the Bill should have only those provisions which are referable to
clauses (a) to (g). The condition is much more stringent than stipulating that
the Bill should incorporate any of the matters spelt out in clauses (a) to (g).
The words “only provisions” means that besides the matters in sub clauses (a)
to (g), the Bill shall not include anything else. Otherwise, the expression “only”
will have no meaning. The word “only” cannot be treated to be otiose or
redundant. Thirdly, the two expressions “if it contains only provisions” and
“namely” indicate that sub-clauses (a) to (g) are exhaustive of what a Money
Bill may contain. The contents of a Money Bill have to be confined to all or any
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of the matters specified in sub-clauses (a) to (g). Fourthly, sub-clause (g)
covers any matter incidental to sub-clauses (a) to (f). A matter is incidental
when it is ancillary to what is already specified. Sub-clause (g) is not a
residuary entry which covers all other matters other than those specified in
sub-clauses (a) to (f). If sub-clause (g) were read as a catch-all residuary
provision, it would defeat the purpose of defining a class of Bills as Money
Bills. What is incidental under sub-clause (g) is that which is ancillary to a
matter which is already specified in sub-clauses (a) to (f). The test is not
whether it is incidental to the content of a Bill but whether it is incidental to any
of the matters specifically enumerated in sub-clauses (a) to (f). The Attorney
General would request the court to read the word “only” before “if” and not
where it occurs. If the submission were to be accepted, it would lead to the
consequence that the Bill would be a Money Bill if it contained provisions
dealing with clause (a) to (g), even if it contained other provisions not relatable
to these clauses. We cannot rewrite the Constitution, particularly where it is
contrary to both text, context and intent.
Clause (2) of Article 110 provides that a Bill shall not be deemed to be a
Money Bill just for the reason that it provides for the imposition of fines or
other pecuniary penalties, or for the demand or payment of fees for licences or
fees for services rendered, or by reason that it provides for the imposition,
abolition, remission, alteration or regulation of any tax by any local authority or
body for local purposes. Like in the Parliament Act of 1911, the definition of a
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Money Bill provided under Article 110(1) is exhaustive in nature. A Bill can be
a Money Bill if it contains “only provisions” dealing with all or any of the
matters listed under sub-clauses (a) to (g) of Article 110(1).
96 A Financial Bill is different from a Money Bill. Article 117 provides for
special provisions relating to Financial Bills. Clause (1) of Article 117 states:
“(1) A Bill or amendment making provision for any of the

matters specified in sub-clauses (a) to (f) of clause (1) of
article 110 shall not be introduced or moved except on the
recommendation of the President and a Bill making such
provision shall not be introduced in the Council of States.”
A Financial Bill does not need to have “only provisions” dealing with Sub-
clauses (a) to (f) of Article 110. The provisions of Article 110(1) are therefore
narrow and exhaustive.
97 As a matter of interpretation, the use of the word “only” indicates that a
particular entry is exhaustive and is inapplicable to anything which falls
outside its scope. This Court has interpreted the expression “only” as a word
of exclusion and restriction.160 The interpretation of Article 110(1) as being
restrictive in nature is also supported by the proceedings in the Constituent
Assembly of India. Article 110 corresponds to Article 90 of the Draft
Constitution. On 20 May 1949, a member of the Constituent Assembly,
Ghanshyam Singh Gupta, proposed an amendment in clause (1) of Article 90
160Hari Ram v. Baby Gokul Prasad, (1991) Supp (2) SCC 608; M/s Saru Smelting (P) Ltd. v. Commissioner of
Sales Tax, Lucknow, (1993) Supp (3) SCC 97.
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to delete the word “only”. He stated that a Bill can be a Money bill even while
containing other provisions. Gupta argued:
“This article is a prototype of Section 37 of the Government of

India Act which says that a Bill or amendment providing for
imposing or increasing a tax or borrowing money, etc. shall
not be introduced or moved except on the recommendation of
the Governor-General. This means that the whole Bill need
not be a money Bill: it may contain other provisions, but if
there is any provision about taxation or borrowing, etc. It will
come under this Section 37, and the recommendation of the
Governor-General is necessary. Now article 90 says that a
Bill shall be deemed to be a money Bill if it contains only
provisions dealing with the imposition, regulation, etc., of
any tax or the borrowing of money, etc. This can mean
that if there is a Bill which has other provisions and also
a provision about taxation or borrowing etc., it will not
become a money Bill. If that is the intention I have
nothing to say; but that if that is not the intention I must
say the word "only" is dangerous, because if the Bill
does all these things and at the same time does
something else also it will not be a money Bill. I do not
know what the intention of the Drafting Committee is but I
think this aspect of the article should be borne in mind.”161
(Emphasis supplied)
Another member Naziruddin Ahmad also emphasized on the deletion of the
word “only”. The concern of these two members was that the word “only”
restricts the scope of a Bill being passed as a Money Bill. Their apprehension
was that if a Bill has other provisions which are unrelated to the clauses
mentioned in draft Article 90, the Bill would not qualify to be a Money Bill in
view of the word “only”. The amendment suggested by these members was
listed to be put to vote on a later date. The amendment was rejected when it
was put to vote on 8 June 1949. The framers of the Indian Constitution
consciously rejected the said amendment.
161 Constituent Assembly Debates (20 May 1949)
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98 When a Bill is listed as a Money Bill, it takes away the power of the
Rajya Sabha to reject or amend the Bill. The Rajya Sabha can only make
suggestions to a Money Bill, which are not binding on the Lok Sabha. The
Constitution makers would have been aware about the repercussions of a Bill
being introduced as a Money Bill. As the role of the Rajya Sabha is limited in
the context of Money Bills, the scope of what constitutes a Money Bill was
restricted by adopting the word “only” in Draft Article 90. A Bill to be a Money
Bill must not contain any provision which falls outside clauses (a) to (g) of
Article 110(1). The Constitution has carefully used the expression “dealing
with” in Article 110 (1) and not the wider legislative form “related to”. A Bill,
which has both − certain provisions which fall within sub-clauses (a) to (g) of
Article 110(1) and other provisions which fall outside will not qualify to be a
Money Bill. It is for this reason that there cannot also be any issue of the
severability of the provisions of a Bill, which has certain provisions relating to
sub-clauses (a) to (g) of Article 110(1), while also containing provisions which
fall beyond. Any other interpretation would result in rewriting the Constitution.
If a Bill contains provisions which fall outside sub-clauses (a) to (g), it is not a
Money Bill. The Rajya Sabha is entitled as part of its constitutional function to
legislative participation. The entirety of the Bill cannot be regarded as a Money
Bill, once it contains any matters which fall beyond sub-clauses (a) to (g).
Once that is the position, it could be impossible to sever those parts which fall
within sub-clauses (a) to (g) and those that lie outside. The presence of
matters which travel beyond sub-clauses (a) to (g) has consequences in terms
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of the nature of the Bill and the legislative participation of the Rajya Sabha. If
the constitutional function of the Rajya Sabha has been denuded on the
hypothesis that this Bill was a Money Bill, the consequence of a finding in
judicial review that the Bill is not a Money Bill must follow. Any other
construction will reduce bicameralism to an illusion.
This interpretation is also supported by the judgment of a Bench of seven
judges of this Court in Krishna Kumar Singh v State of Bihar162, where it
held that the ordinance making power conferred upon the President and the
Governors is limited by the requirements set out by Articles 123 and 213. This
Court had held:
“59…The constitutional conferment of a power to frame

ordinances is in deviation of the normal mode of legislation
which takes place through the elected bodies comprising of
Parliament and the state legislatures. Such a deviation is
permitted by the Constitution to enable the President and
Governors to enact ordinances which have the force and
effect of law simply because of the existence of
circumstances which can brook no delay in the formulation of
legislation. In a parliamentary democracy, the government is
responsible collectively to the elected legislature. The
subsistence of a government depends on the continued
confidence of the legislature. The ordinance making power
is subject to the control of the legislature over the
executive. The accountability of the executive to the
legislature is symbolised by the manner in which the
Constitution has subjected the ordinance making power
to legislative authority. This, the Constitution achieves by
the requirements of Article 213...”163 (Emphasis supplied)
99 The authority of the Lok Sabha to pass a Money Bill is based on the
requirements set out under Article 110. The framers of the Indian Constitution
162 (2017) 3 SCC 1

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deliberately restricted the scope of Article 110(1) to ensure that the provision
is not an avenue to supersede the authority of the Rajya Sabha. The intention
of the Constitution makers is clear. The Lok Sabha cannot introduce and pass
a legislative measure in the garb of a Money Bill, which could otherwise have
been amended or rejected by the Rajya Sabha. Bicameralism is a founding
value of our democracy. It is a part of the basic structure of the Constitution.
Introduction and passing of a Bill as a Money Bill, which does not qualify to be
a Money Bill under Article 110(1) of the Constitution, is plainly
unconstitutional. The Lok Sabha is not entrusted with the entire authority of
Parliament. The Lok Sabha, the Rajya Sabha and the President together
constitute the Parliament of India. The Lok Sabha is a body of elected
representatives and represents the aspirations of citizens. Yet, like every
constitutional institution, it is part of this basic structure of the Constitution. A
political party or a coalition which holds the majority in the Lok Sabha cannot
subvert the working of the Constitution, against which Dr B R Ambedkar had
warned164 in the Constituent Assembly. A ruling government has to work
within constitutional parameters and has to abide by constitutional morality.
100 The Constitution of India is not a mere parchment of paper. It was
written with the vision of those who gave blood and sweat to freedom: political
personalities, social reformers and constitution framers. It symbolises a faith in
institutions, justice and good governance. That vision cannot be belied. The
164 Constituent Assembly Debates (4 November, 1948). Dr Ambedkar had remarked: “… it is perfectly possible to
pervert the Constitution, without changing its form by merely changing the form of the administration and to
make it inconsistent and opposed to the spirit of the Constitution.”
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Speaker of the Lok Sabha has an onerous constitutional duty to ensure that a
Bill, which is not a Money Bill is not passed as a Money Bill. The Speaker of
the Lok Sabha, the Chairman of the Rajya Sabha, the members of the Lok
Sabha and the Rajya Sabha, and the President need to work in constitutional
solidarity to ensure that no provision of the Constitution is diluted or subverted.
101 The Aadhaar Act was passed as a Money Bill. The provisions of the Act
need to be analysed to determine whether the Act is a Money Bill.
The Preamble of the Act states that it is:
“An Act to provide for, as a good governance, efficient,

transparent, and targeted delivery of subsidies, benefits and
services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such
individuals and for matters connected therewith or incidental
thereto.”
The Preamble focuses on the delivery of subsidies, benefits and services for
which the expenditure is borne from the Consolidated Fund of India. But the
essential issue is whether the Act confines itself to matters which fall within
the ambit of Article 110.
102 Section 3 entitles every resident165 in India to obtain an Aadhaar
number by submitting his or her demographic information, by undergoing the
process of enrolment. Section 2(m) defines “enrolment” as the process to
165 Section 2(v) provides: “resident” means an individual who has resided in India for a period or periods
amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding
the date of application for enrolment.
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collect demographic and biometric information from individuals by the enrolling
agencies for the purpose of issuing Aadhaar numbers to such individuals.
After receiving the demographic and biometric information of the individual,
the Unique Identification Authority of India (UIDAI) would verify the information
and shall issue an Aadhaar number to such an individual.166 Section 4(3)
provides that the Aadhaar number may be accepted as proof of identity for
“any purpose”. Section 5 requires UIDAI to take special measures to issue
Aadhaar numbers to “women, children, senior citizens, persons with disability,
unskilled and unorganised workers, nomadic tribes or to such other persons
who do not have any permanent dwelling house and such other categories of
individuals”. Under Section 6, UIDAI may require Aadhaar number holders to
update their demographic information and biometric information, from time to
time so as to ensure continued accuracy of their information in the Central
Identities Data Repository (“CIDR”). The Aadhaar Act defines CIDR as a
centralised database containing all Aadhaar numbers issued to Aadhaar
number holders along with the corresponding demographic information and
biometric information of such individuals and other related information.167
103 Section 7 requires proof of an Aadhaar number as a necessary
condition to avail subsidies, benefits and services, for which the expenditure is
borne from the Consolidated Fund of India. The proviso to Section 7 states
that if an Aadhaar number is not assigned to an individual, the individual shall

167 Section 2(h), Aadhaar Act
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be offered alternate and viable means of identification for delivery of the
subsidy, benefit or service. Section 8(1) requires UIDAI to perform
authentication168 of the Aadhaar number of an Aadhaar number holder, in
relation to his or her biometric information or demographic information
submitted by any requesting entity169. Under Section 8(2), a requesting entity
is required to obtain the consent of an individual before collecting his or her
identity information for the purposes of authentication. The requesting entity
must ensure that the identity information of an individual collected by it is only
used for submission to the CIDR for authentication. Section 8(3) requires a
requesting entity to inform the individual submitting identity information for
authentication certain details with respect to authentication.
104 Chapter IV of the Act deals with UIDAI. Section 11 establishes UIDAI as
the body responsible for the processes of enrolment and authentication and
for performing functions assigned to it under the Act. The Act provides for the
composition of UIDAI170, qualifications of its members171, terms of office172 of
its chairperson and members, their removal173 and functions174. Section 23,
which deals with the powers and functions of UIDAI, authorizes it to develop
the policy, procedure and systems for issuing Aadhaar numbers to individuals
168 Section 2(c) provides: “authentication” means the process by which the Aadhaar number alongwith
demographic information or biometric information of an individual is submitted to the Central Identities Data
Repository for its verification and such Repository verifies the correctness, or the lack thereof, on the basis of
information available with it.
169 Section 2 (u) provides: “requesting entity” means an agency or person that submits the Aadhaar number, and
demographic information or biometric information, of an individual to the Central Identities Data Repository for
authentication
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and to perform authentication. Section 23(h) states that UIDAI has the power
to specify the “manner of use of Aadhaar numbers” for the purposes of
providing or availing of various subsidies, benefits, services and “other
purposes” for which Aadhaar numbers may be used. Under Section 23(3),
UIDAI may enter into a Memorandum of Understanding or agreement with the
Central Government or State Governments or Union territories or other
agencies for the purpose of performing any of the functions in relation to
collecting, storing, securing or processing of information or delivery of
Aadhaar numbers to individuals or performing authentication.
105 Chapter V deals with grants, accounts and audit and annual reports of
UIDAI. Section 25 provides that the fees or revenue collected by UIDAI shall
be credited to the Consolidated Fund of India. Chapter VI deals with protection
of information collected from individuals for authentication. Section 28(3)
requires UIDAI to take all necessary measures to ensure that the information
in its possession or control, including information stored in the CIDR, is
secured and protected against access, use or disclosure (not permitted under
the Act or the regulations), and against accidental or intentional destruction,
loss or damage. Section 29 imposes restrictions on sharing of core biometric
information, collected or created under the Act. Section 32(2) entitles every
Aadhaar number holder to obtain his or her authentication record in such
manner as may be specified by regulations. Section 33 provides for disclosure
of information pursuant to a court order or in the interest of national security.
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106 Chapter VII of the Act (Sections 34 to 47) provides for offences and
penalties. Section 34 provides for penalty for impersonation at the time of
enrolment. Section 35 provides a penalty for impersonation of an Aadhaar
number holder by changing demographic or biometric information. Under
Section 37, a penalty for disclosing identity information (which was collected in
the course of enrolment or authentication) is provided. Section 38 provides a
penalty for unauthorised access to the CIDR. Section 39 imposes a penalty for
tampering with data in the CIDR. Under Sections 40 and 41, a penalty has
been provided for requesting entities and enrolment agencies, in case they act
in contravention of the obligations imposed upon them under the Act. Section
44 indicates that the provisions of the Act would apply to any offence or
contravention committed outside India by any person, irrespective of
nationality.
107 Section 48 empowers the Central Government to supersede UIDAI in
certain situations. Section 50 states that UIDAI is bound by directions on
questions of policy given by the Central Government. Section 51 authorizes
the UIDAI to delegate to any member, officer of the Authority or any other
person, such of its powers and functions (except the power under section 54)
as it may deem necessary. Section 53 empowers the Central Government to
make rules to carry out the provisions of the Act. Under Section 54(2)(m),
UIDAI can make regulations providing the manner of use of Aadhaar numbers
for the purposes of providing or availing of various subsidies, benefits,
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services and “other purposes” for which Aadhaar numbers may be used.
Section 57 authorizes the State or any body corporate or person to use an
Aadhaar number for establishing the identity of an individual “for any purpose”,
subject to the procedure and obligations under Section 8 and Chapter VI of
the Act. Section 59 seeks to validate the actions taken by the Central
Government pursuant to the notifications dated 28 January 2009 and 12
September 2015, and prior to the enactment of the Aadhaar Act.
This broad description of the provisions of the Aadhaar Act indicates that the
Act creates a framework for obtaining a unique identity number - the Aadhaar
number - by submitting demographic and biometric information and
undergoing the process of enrolment and authentication. The Act indicates
that the Aadhaar number may be accepted as proof of identity for any
purpose. The Act, in other words, creates a platform for one pan-India and
nationally acceptable identity. It creates a central database (CIDR) for storage
of identity information collected from individuals. Sections 3 to 6 specifically
deal with the process of enrolment. Section 3 entitles every resident to hold
an Aadhaar number. Section 4(3) states that the Aadhaar number so
generated may be used as a proof of identity “for any purpose”. The primary
object of the legislation is to create one national identity for every resident. It
seeks to do so by legislating a process for collecting demographic and
biometric information. The Act has created an authority to oversee the
fulfilment of its provisions. In its primary focus and initiatives, the law traverses
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beyond the territory reserved by Article 110 for a Money Bill. Sections 7 to 10
deal with authentication of information submitted at the time of enrolment.
Section 8 creates obligations on requesting entities to ensure that consent
is obtained from individuals before collecting their identity information and
that the identity information of such individual is only used for submission to
the CIDR for authentication. Sections 11 to 23 create a statutory authority
(UIDAI) and assign responsibilities to it for the processes of enrolment and
authentication and to discharge other functions assigned to it under the Act,
including developing the policy, procedure and systems for issuing Aadhaar
numbers to individuals. Section 23(2)(h) provides that apart from availing of
various subsidies, benefits, and services, Aadhaar numbers may be used for
“other purposes”. Sections 28 to 33 deal with protection of information, and
provide for security and confidentiality of identity information and restrictions
on sharing of information. Section 28 imposes obligations on the UIDAI to
ensure the security and confidentiality of identity information and
authentication records of individuals, which are in its possession or control,
including information stored in CIDR. Disclosure of identity information and
authentication records can be made under Section 33, pursuant to a court
order (not below the rank of District Judge) or in the interest of national
security in pursuance of a direction of an officer (not below the rank of Joint
Secretary to the Government of India). Sections 34 to 47 deal with substantive
offences and penalties created under the Act. Sections 54(2)(m) states that
regulations can be made by UIDAI specifying the manner of use of Aadhaar
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numbers for the purposes of providing or availing of various subsidies,
benefits, services and “other purposes” for which Aadhaar numbers may be
used. Section 57 authorizes the use of Aadhaar number by anyone (whether
by the State or any body corporate or person under law or contract) for
establishing the identity of an individual “for any purpose”.
108 Section 7 makes the use of the Aadhaar number mandatory for availing
subsidies, benefits or services, for which expenditure is incurred from the
Consolidated Fund of India. The scheme of the Act deals with several aspects
relating to the unique identity number. The unique identity is capable of being
used for multiple purposes: availing benefits, subsidies and services, for
which expenses are incurred from the Consolidated Fund of India, is just one
purpose, among others. The Preamble to the Aadhaar Act indicates that the
main objective was to achieve an efficient and “targeted delivery of subsidies,
benefits and services, the expenditure for which is incurred from the
Consolidated Fund of India”. The substantive provisions of the Act are,
however, not confined to the object specified in the Preamble. Indeed, they
travel far beyond the boundaries of a money bill under Article 110(1). The
enrolment on the basis of demographic and biometric information, generation
of Aadhaar number, obtaining consent of individuals before collecting their
individual information, creation of a statutory authority to implement and
supervise the process, protection of information collected during the process,
disclosure of information in certain circumstances, creation of offences and
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penalties for disclosure or loss of information, and the use of the Aadhaar
number for any purpose lie outside the ambit of Article 110. These themes are
also not incidental to any of the matters covered by sub-clauses (a) to (f) of
Article 110(1). The provisions of Section 57 which allow the use of an Aadhaar
number by bodies corporate or private parties for any purpose do not fall
within the ambit of Article 110. The legal framework of the Aadhaar Act
creates substantive obligations and liabilities which have the capability of
impacting on the fundamental rights of residents.
109 A Bill, to be a Money Bill, must contain only provisions which fall within
the ambit of the matters mentioned in Article 110. Section 7 of the Act allows
the Aadhaar number to be made mandatory for availing of services, benefits
and subsidies for which expenditure is incurred from the Consolidated Fund of
India. Under clause (e) of Article 110(1) the money bill must deal with the
declaring of any expenditure to be expenditure charged on the Consolidated
Fund of India (or increasing the amount of expenditure). Significantly, Section
7 does not declare the expenditure incurred on services, benefits or subsidies
to be a charge on the Consolidated Fund of India. What Section 7 does is to
enact a provision allowing for Aadhaar to be made mandatory, in the case of
services, benefits or subsidies which are charged to the Consolidated Fund.
Section 7 does not declare them to be a charge on the Consolidated Fund. It
provides that in the case of services, benefits or subsidies which are already
charged to the Consolidated Fund, Aadhaar can be made mandatory to avail
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of them. Section 7, in other words, is a provision for imposing a requirement of
authentication and not declaring any expenditure to be a charge on the
Consolidated Fund of India. Hence, even Section 7 is not within the ambit of
Article 110(1)(e). However, even if Section 7 were to be held to be referable to
Article 110, that does not apply to the other provisions of the Act. The other
provisions of the Act do not in any event fall within the ambit of Article 110(1).
Introducing one provision – Section 7 – does not render the entirety of the Act
a Money Bill where its other provisions travel beyond the parameters set out in
Article 110. Section 57 of the Act in particular (which creates a platform for the
use of the Aadhaar number by the private entities) can by no stretch of logic
be covered under Article 110(1). The other provisions of the Act do not deal
with that which has been provided under Sub-clauses (a) to (g) of Article 110.
As regards the ‘incidental’ provision under Article 110(1)(g), the provisions of
the Aadhaar Act are not “incidental to any of the matters specified in sub-
clauses (a) to (f)”. Even if it is assumed that there is one provision (Section 7)
which is relatable to sub-clause (e) of Article 110(1), the other provisions of
the Act are unrelated to Article 110(1).
110 This Court must also advert to the legislative history prior to the
enactment of the Aadhaar Act. An attempt to provide a legislative framework
governing the Aadhaar project was first made by introducing the National
Identification Authority of India Bill, 2010 (“NIA Bill”). The NIA Bill was
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introduced in the Rajya Sabha on 3 December 2010. The Preamble of the Bill
indicated its purpose:
“A Bill to provide for the establishment of the National

Identification Authority of India for the purpose of issuing
identification numbers to individuals residing in India and to
certain other classes of individuals and manner of
authentication of such individuals to facilitate access to
benefits and services to such individuals to which they are
entitled and for matters connected therewith or incidental
thereto.”
The main objective of the Bill was to establish the National Identification
Authority of India to issue unique identification numbers (called ‘Aadhaar’) to
residents of India and to any other category of people for the purpose of
facilitating access to benefits and services. Chapter II (Clauses 3 to 10) of the
Bill dealt with Aadhaar numbers. Clause 3 of the Bill entitled every resident to
obtain an Aadhaar number on providing demographic and biometric
information to the Authority in such manner as may be specified. Clause 4(3)
stated that an Aadhaar number shall be accepted, subject to authentication,
as proof of identity of the Aadhaar number holder. Chapter III (Clauses 11 to
23) dealt with the National Identification Authority of India. Clause 11 provided
for establishment of the Authority by the Central Government. Clause 23
empowered the Authority to develop the policy, procedure and systems for
issuing Aadhaar numbers to residents and to perform authentication. Clause
23(2)(h) stated that the Authority may specify the usage and applicability of
the Aadhaar number for delivery of various benefits and services.
Establishing, operating and maintaining of the Central Identities Data
Repository (CIDR) by the Authority was provided under Clause 23(2)(j).
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Chapter IV (Clauses 24 to 27) provide for grants, accounts and audit and
annual reports related to the Authority. Clause 25 stated that the fees or
revenue collected by the Authority shall be credited to the Consolidated Fund
of India and the entire amount would be transferred to the Authority. Chapter
V (Clauses 28 and 29) dealt with creation of an Identity Review Committee
and its functions. The functions of the Review Committee included
ascertaining the extent and pattern of usage of Aadhaar numbers across the
country and preparing a report annually along with recommendations. Chapter
VI (Clauses 30 to 33) dealt with the protection of individual identity information
and authentication records. Clause 30(1) required the Authority to ensure the
security and confidentiality of identity information and authentication records of
individuals. Clause 30(2) required the Authority to take measures (including
security safeguards) to ensure that the information in the possession or
control of the Authority (including information stored in the Central Identities
Data Repository) is secured and protected against any loss or unauthorised
access or use or unauthorised disclosure. Clause 33 stated that individual
information may be disclosed pursuant a court order or in the interest of
national security. Chapter VII (Clauses 34 to 46) created offences and
penalties under the law. Clause 47 empowered the Central Government to
supersede the Authority. Clause 50 authorized the Authority to delegate to any
Member, officer of the Authority or any other person such of its powers and
functions (except the power under Clause 53). Clause 57 sought to validate
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actions taken by the Central Government under the Planning Commission’s
notification of 2009.
111 Since the UID programme involved complex issues, the NIA Bill was
referred, on 10 December 2010, to the Standing Committee on Finance,
chaired by Mr Yashwant Sinha, for examination and report. The Standing
Committee comprised of 21 members from the Lok Sabha and 10 members
from the Rajya Sabha. The Standing Committee submitted its Report175 on 11
December 2011. The Report raised several objections to the Bill, which
included those summarised below:
(i) Since law making was underway, the bill being pending, any executive
action is as violative of Parliament’s prerogatives as promulgation of an
ordinance while one of the Houses of Parliament is in session;
(ii) While the country is facing a serious problem of illegal immigrants and
infiltration from across the borders, the National Identification Authority of
India Bill, 2010 proposes to entitle every resident to obtain an Aadhaar
number, apart from entitling such other category of individuals as may be
notified from time to time. This will, it is apprehended, make even illegal
immigrants entitled for an Aadhaar number;
(iii) The issue of a unique identification number to individuals residing in India
and other classes of individuals under the Unique Identification (UID)
175Forty-Second Report, Standing Committee on Finance (2011-12), available at

http://www.prsindia.org/uploads/media/UID/uid%20report.pdf
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Scheme is riddled with serious lacunae and concern areas. For example,
the full or near full coverage of marginalized sections for issuing Aadhaar
numbers could not be achieved mainly due to two reasons viz. (a) the
UIDAI doesn’t have the statistical data relating to them; and (b) estimated
failure of biometrics is expected to be as high as 15% because a large
chunk of population is dependent on manual labour;
(iv) Despite the presence of serious differences of opinion within the
Government on the UID scheme, the scheme continues to be
implemented in an overbearing manner without regard to legalities and
other social consequences;
(v) The UID scheme lacks clarity on many issues including even the basic
purpose of issuing an “Aadhaar” number. Although the scheme claims
that obtaining an Aadhaar number is voluntary, an apprehension has
developed in the minds of people that in future, services / benefits
including food entitlements would be denied in case they do not an have
an Aadhaar number;
(vi) It is also not clear as to whether possession of an Aadhaar number would
be made mandatory in future for availing of benefits and services. Even if
the Aadhaar number links entitlements to targeted beneficiaries, it may
not ensure that beneficiaries have been correctly identified. Thus, the
present problem of proper identification would persist;
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(vii) Though there are significant differences between the identity system of
other countries and the UID scheme, yet there are lessons from the
global experience to be learnt before proceeding with the implementation
of the UID scheme, which the Ministry of Planning has ignored
completely;
(viii) Considering the huge database and possibility of misuse of information,
the enactment of a national data protection law is a pre-requisite for any
law that deals with large scale collection of information from individuals
and its linkages across separate databases. In the absence of data
protection legislation, it would be difficult to deal with issues like access to
and misuse of personal information, surveillance, profiling, linking and
matching of data bases and securing confidentiality of information;
(ix) The Standing Committee strongly disapproved of the hasty manner in
which the UID scheme was approved. Unlike many other schemes /
projects, no comprehensive feasibility study, which ought to have been
done before approving such an expensive scheme, was done involving all
aspects of the UID scheme including a cost-benefit analysis, comparative
costs of Aadhaar numbers and various existing forms of identity, financial
implications and prevention of identity theft, for example, using hologram
enabled ration cards to eliminate fake and duplicate beneficiaries;
(x) The UID scheme may end up being dependent on private agencies,
despite contractual agreements made by the UIDAI with several private
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vendors. As a result, the beneficiaries may be forced to pay over and
above the charges to be prescribed by the UIDAI for availing of benefits
and services, which are now available free of cost;
(xi) The scheme is full of uncertainty in technology as a complex scheme is
built up on untested and unreliable technology and on several
assumptions. It is also not known as to whether the proof of concept
studies and assessment studies undertaken by the UIDAI have explored
the possibilities of maintaining accuracy to a large level of enrolment of
1.2 billion people; and
(xii) The Committee felt that entrusting the responsibility of verification of
information of individuals to the registrars to ensure that only genuine
residents get enrolled into the system may have far reaching
consequences for national security. Given the limitation of any
mechanism such as a security audit by an appropriate agency that would
be set up for verifying the information, it is not evident as to whether a
complete verification of information of all Aadhaar number holders is
practically feasible; and whether it would deliver the intended results
without compromising national security.
With these apprehensions about the UID scheme, the Standing Committee on
Finance categorically conveyed that the National Identification Authority of
India Bill, 2010 was not acceptable. The Committee urged the Government to
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reconsider and review the UID scheme and the proposals contained in the Bill
and bring forth a fresh legislation before Parliament. Ultimately, the NIA Bill
was withdrawn from the Rajya Sabha on 3 March, 2016.
112 A comparison of the Aadhaar Act 2016 and NIA Bill 2010 reveals that
both have a common objective and framework − establishing a system of
unique identity numbers, which would be implemented and monitored by a
statutory authority. The NIA Bill was not a Money Bill. It was never passed by
the Rajya Sabha. The Bill was scrutinized by a Standing Committee on
Finance, which had 10 members from the Rajya Sabha and 21 from the Lok
Sabha. The NIA Bill did not contain a provision, similar to Section 7 of the
Aadhaar Act. Yet, as discussed earlier, the presence of Section 7 does not
make the Aadhaar Act a Money Bill. Introducing the Aadhaar Act as a Money
Bill deprived the Rajya Sabha of its power to reject or amend the Bill. Since
the Aadhaar Act in its current form was introduced as a Money Bill in the Lok
Sabha, the Rajya Sabha had no option other than of making
recommendations to the Bill. The recommendations made by the Rajya Sabha
(which also included deletion of Section 57) were rejected by the Lok Sabha.
The legislative history is a clear pointer to the fact that the subsequent
passage of the Bill as a Money Bill by-passed the constitutional authority of
the Rajya Sabha. The Rajya Sabha was deprived of its legitimate
constitutional role by the passage of the Bill as a Money Bill in the Lok Sabha.
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113 The Court must also address the contention of the Respondents that
the Aadhaar Act is “in pith and substance” a Money Bill. The learned Attorney
General for India has submitted that though the Act has ancillary provisions,
its main objective is the delivery of subsidies, benefits and services flowing out
of the Consolidated Fund of India and that the other provisions are related to
the main purpose of the Act which was giving subsidies and benefits. It has
been submitted that the real test to be applied in the present dispute is the
doctrine of pith and substance.
114 This Court has applied the doctrine of pith and substance when the
legislative competence of a legislature to enact a law is challenged. The
doctrine is applied to evaluate whether an enactment which is challenged falls
within an entry in one of the three Lists in the Seventh Schedule over which
the legislature has competence under Article 246 of the Constitution. The
Seventh Schedule to the Constitution distributes legislative powers between
the Union and the States. When a law enacted by a legislature is challenged
on the ground of a lack of legislative competence, the doctrine of pith and
substance is invoked. Under the doctrine, the law will be valid if in substance,
it falls within the ambit of a legislative entry on which the legislature is
competent to enact a law, even if it incidentally trenches on a legislative entry
in a separate list. The constitutional rationale for the application of this
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doctrine has been explained in a Constitution Bench decision of this Court in
A S Krishna v State of Madras176:
“8…But then, it must be remembered that we are construing a

federal Constitution. It is of the essence of such a
Constitution that there should be a distribution of the
legislative powers of the Federation between the Centre
and the Provinces. The scheme of distribution has varied
with different Constitutions, but even when the Constitution
enumerates elaborately the topics on which the Centre and
the States could legislate, some overlapping of the fields of
legislation is inevitable. The British North America Act, 1867,
which established a federal Constitution for Canada,
enumerated in Sections 91 and 92 the topics on which the
Dominion and the Provinces could respectively legislate.
Notwithstanding that the lists were framed so as to be
fairly full and comprehensive, it was not long before it
was found that the topics enumerated in the two sections
overlapped, and the Privy Council had time and again to
pass on the constitutionality of laws made by the
Dominion and Provincial legislatures. It was in this
situation that the Privy Council evolved the doctrine, that
for deciding whether an impugned legislation was intra
vires, regard must be had to its pith and substance. That
is to say, if a statute is found in substance to relate to a
topic within the competence of the legislature, it should
be held to be intra vires, even though it might incidentally
trench on topics not within its legislative competence...”
(Emphasis supplied)
The decision of a three judge Bench of this Court in State of Maharashtra v
Bharat Shanti Lal Shah177 has summarized the process of reasoning which
must be followed by the Court while applying the doctrine of pith and
substance. The Court held:
“43…If there is a challenge to the legislative competence the

courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question. In this
process, it is necessary for the courts to go into and
examine the true character of the enactment, its object,
its scope and effect to find out whether the enactment in
176 1957 SCR 399

177(2008) 13 SCC 5
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question is genuinely referable to the field of legislation

allotted to the respective Legislature under the
constitutional scheme. Where a challenge is made to the
constitutional validity of a particular State Act with reference
to a subject mentioned in any entry in List I, the court has to
look to the substance of the State Act and on such analysis
and examination, if it is found that in the pith and substance, it
falls under an entry in the State List but there is only an
incidental encroachment on topics in the Union List, the State
Act would not become invalid merely because there is
incidental encroachment on any of the topics in the Union
List.”178 (Emphasis supplied )
115 The doctrine of pith and substance is mainly used to examine whether
the legislature has the competence to enact a law with regard to any of the
three Lists provided under the Constitution. It cannot be applied to sustain as
a Money Bill, a Bill which travels beyond the constitutional boundaries set out
by Article 110 Whether a Bill is validly passed as a Money Bill has nothing to
do with the legislative competence of the legislature under Article 246 of the
Constitution. Whether a Bill is a Money Bill has to be tested within the
boundaries of Article 110. The submission of the Attorney General boils down
to this: ‘ignore the expression “only provisions dealing with all or any of the
following matters” and hold the Bill to be a Money Bill by treating Section 7 as
its dominant provision’. This cannot be accepted. This would ignore the
express and clear language of Article 110. As we have emphasised earlier,
the submission of the Attorney General requires the court to transpose the
word “only” from its present position to a place before “if”. That would be to
rewrite the Constitution to mean that a Bill would be a Money Bill if it
contained some provisions which fall under sub-clauses (a) to (g). The
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Constitution says to the contrary: a Bill is a Money Bill if it contains “only
provisions” dealing with one or more of the matters set out in sub-clauses (a)
to (g). Looked at in another way, all the provisions of the Aadhaar Act (apart
from Section 7) cannot be read as incidental to Section 7. Such a view is
belied by a plain reading of the Act, as indicated earlier. Moreover, we have
also indicated reasons why even Section 7 cannot be held to be referable to
Article 110. Section 7 does not deal with the declaring of any expenditure as
expenditure charged to the Consolidated Fund. Section 7 allows for making
Aadhaar mandatory for availing of subsidies, benefits or services the
expenditure incurred on which is charged to the Consolidate Fund. Section 7
does not charge any expenditure to the Consolidated Fund. It deals with
making Aadhaar mandatory.
In support of their contention, the Respondents have also relied upon a two
judge Bench decision in Union of India v Shah Goverdhan L Kabra
Teachers’ College179 to submit that the doctrine of pith and substance can be
used in any context. The Court held:
“7. It is further a well-settled principle that entries in the

different lists should be read together without giving a narrow
meaning to any of them. Power of the Parliament as well as
the State legislature are expressed in precise and definite
terms. While an entry is to be given its widest meaning but it
cannot be so interpreted as to over-ride another entry or
make another entry meaningless and in case of an apparent
conflict between different entries, it is the duty of the court to
reconcile them. When it appears to the Court that there is
apparent overlapping between the two entries the doctrine of
"pith and substance" has to be applied to find out the true
nature of a legislation and the entry with which it would fall. In
179 (2002) 8 SCC 228
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case of conflict between entries in List I and List II, the same
has to be decided by application of the principle of "pith and
substance". The doctrine of "pith and substance" means
that if an enactment substantially falls within the powers
expressly conferred by the Constitution upon the
legislature which enacted it, it cannot be held to be
invalid, merely because it incidentally encroaches on
matters assigned to another legislature. When a law is
impugned as being ultra-vires of the legislative competence,
what is required to be ascertained is the true character of the
legislation. If on such an examination it is found that the
legislation is in substance one on a matter assigned to the
legislature then it must be held to be valid in its entirety even
though it might incidentally trench on matters which are
beyond its competence. In order to examine the true
character of the enactment, the entire Act, its object and
scope and effect, is required to be gone into. The question of
invasion into the territory of another legislation is to be
determined not by degree but by substance. The doctrine of
"pith and substance' has to be applied not only in cases
of conflict between the powers of two legislatures but in
any case where the question arises whether a legislation
is covered by particular legislative power in exercise of
which it is purported to be made.”180 (Emphasis supplied)
The decision is of no assistance to the submission in the present dispute. The
observations made by the Court are in relation to the power to legislate under
Article 246 of the Constitution. It is unconnected to the question of a Money
Bill. Therefore, the argument that the Aadhaar Act is “in pith and substance” a
Money Bill is rejected.
116 Introducing the Aadhaar Act as a Money Bill has bypassed the
constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act
as a Money Bill is an abuse of the constitutional process. It deprived the Rajya
Sabha from altering the provisions of the Bill by carrying out amendments. On
the touchstone of the provisions of Article 110, the Bill could not have been
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certified as a Money Bill. In his last address to the Constituent Assembly on
25 November 1949, Dr B R Ambedkar had stated:
“The working of a Constitution does not depend wholly upon

the nature of the Constitution. The Constitution can provide
only the organs of State such as the Legislature, the
Executive and the Judiciary. The factors on which the working
of those organs of the State depends are the people and the
political parties they will set up as their instruments to carry
out their wishes and their politics.”181
117 The Rajya Sabha has an important role in the making of laws.
Superseding the authority of the Rajya Sabha is in conflict with the
constitutional scheme and the legitimacy of democratic institutions. It
constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill, when
it does not qualify for it, damages the delicate balance of bicameralism which
is a part of the basic structure of the Constitution. The ruling party in power
may not command a majority in the Rajya Sabha. But the legislative role of
that legislative body cannot be obviated by legislating a Bill which is not a
Money Bill as a Money Bill. That would constitute a subterfuge, something
which a constitutional court cannot countenance. Differences in a democratic
polity have to be resolved by dialogue and accommodation. Differences with
another constitutional institution cannot be resolved by the simple expedient of
ignoring it. It may be politically expedient to do so. But it is constitutionally
impermissible. This debasement of a democratic institution cannot be allowed
to pass. Institutions are crucial to democracy. Debasing them can only cause
a peril to democratic structures.
181 Constituent Assembly (25 November 1949)
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The Act thus fails to qualify as a Money Bill under Article 110 of the
Constitution. Since the Act was passed as a Money Bill, even though it does
not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is
in violation of Article 110 and therefore is liable to be declared
unconstitutional.
F Biometrics, Privacy and Aadhaar
“Any situation that allows an interaction between man and

machine is capable of incorporating biometrics”182
118 The term ‘biometric’ is derived from the Greek nouns ‘βίος’ (life) and
‘μέτρον’ (measure) and means ‘measurement of living species’. 183 Biometric
technologies imply that “unique or distinctive human characteristics of a
person are collected, measured and stored for the automated verification of a
claim made by that person for the identification of that person.”184 These
systems thus identify or verify the identity or a claim of persons on the basis of
the automated measurement and analysis of their biological traits (such as
fingerprints, face and iris) or behavioral characteristics (such as signature and
voice).
182 Gary Roethenbaugh, (cited in A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner,
Ontario, Canada, 1999, page 11, available at http://www.ipc.on.ca/images/Resources/pri- biom.pdf
183 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis,
Springer (2013)
184 Ibid.
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PART F
119 The idea that parts of our body can be used to identify our unique
selves is not new. Prints of hand, foot and finger have been used since
ancient times because of their unique characteristics. Before the advent of
biometric systems, however, human characteristics were compared in a
manual way. Today’s biometric systems hence differ from manual verification
methods in that technology allows for automated comparison of human
characteristic(s) in place of a regime of manual verification that existed earlier.
It must be understood that biometric systems themselves do not identify
individuals. For identification, additional information which is already stored in
databases is needed since biometric systems can only compare information
which is already submitted.185 Integral to such a system is the matching of a
claim of identity with biometric data collected and stored earlier.
In general, biometric applications are referred to as systems which allow one
to authenticate claims. The verb ‘to authenticate’ can be described as ‘making
authentic, legally valid’.186 Originally, fingerprints were the most commonly
known and used biometric traits, but with improvements in technology,
multiple sources of biometric information have emerged. These include data
related to facial features, iris, voice, hand geometry and DNA. Each trait is
collected using different technologies and can be used for different purposes
185 Ibid.
186 Ibid.
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separately or in combination, to strengthen and improve the accuracy and
reliability of the identification process.187
In general, biometric information is developed by processing extractable key
features of an individual into an ‘electronic digital template’, which is then
encrypted and stored in a database. When an individual connects with the
system to verify his/her identity for any purpose, the information is used by
matching the ‘electronic digital template’ saved with the biometric information
presented, based on which comparison, the individual’s identity will be
confirmed or rejected. The intended purpose of biometric technology is to
confirm the identity of individuals through a “one to one” identification check.
This system compares a source of biometric data with existing data for that
specific person.
F.I Increased use of biometric technology
120 There had been an initial increase in the usage of biometric technology
in both developed and developing countries by both the private and the public
sector. However, despite the increased adoption of biometric technologies by
developed countries in the 1980s and 1990s, recent trends depict their
reluctance to deploy biometric technology - or at least mass storage of
biometric data - because of privacy concerns.188 Key instances included the
187Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
188Privacy International, Biometrics: Friend or foe of privacy?, available at
https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
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PART F
scrapping of the National Identity Register and ID cards in the UK, and
Germany’s decision to reject a centralised database when deploying biometric
passports.189 By contrast, in developing countries there is a rise in the
deployment of biometric technology since it is being portrayed to citizens as a
means to establishing their legal identity and providing them access to
services, as well as a tool for achieving economic development. However, too
often these goals are prioritised at the expense of their right to privacy and
other human rights.190 Simon Davies, an eminent privacy expert, points out
that it is not an accident or coincidence that biometric systems are most
aggressively tried out with welfare recipients since they are not in a position to
resist the State-mandated intrusion.191
There has been a particular increase in the use of biometric technology in
identification programs in developing countries. This is because “biometrics
include a wide range of biological measures which are considered sufficiently
unique at a population level to allow individual identification with high rates of
accuracy”.192 Lack of formal identification and official identity documentation in
the developing world is a serious challenge which impedes the ability of
governments as well as development organisations to provide essential goods
and services to the populations they serve.193 Further, identification is also
189 Ibid
190 Ibid
191 Simon Davies, as cited in John D. Woodward, Biometric Scanning, Law & Policy: Identifying the Concerns -
Drafting the Biometric Blueprint, University of Pittsburgh Law Review, (1997)

192 Daniel M. L Storisteanu, Toby L. Norman, Alexandra Grigore and Alain B. Labrique, Can biometrics beat the
developing world’s challenges?, Biometric Technology Today (2016)

193 Ibid
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PART F
essential to the gathering of accurate data which is required for monitoring the
progress of government programmes.194 However, while biometric technology
brings many advantages, the flip side is that the same technology can also
lead to human rights violations:
“When adopted in the absence of strong legal frameworks

and strict safeguards, biometric technologies pose grave
threats to privacy and personal security, as their application
can be broadened to facilitate discrimination, profiling and
mass surveillance. The varying accuracy and failure rates of
the technology can lead to misidentification, fraud and civic
exclusion.”195
121 The adoption of biometric technologies in developing countries in
particular poses unique challenges since the implementation of new
technologies in these countries is rarely preceded by the enactment of robust
legal frameworks. Assessments of countries where a legal mechanism to
regulate new technologies or protect data has followed as an afterthought
have shown that there exists a huge risk of mass human rights violations
where individuals are denied basic fundamental rights, and in extreme cases,
even their identity.196
122 Technology today brings with it tremendous power and is much like two
sides of a coin. When applied productively, it allows individuals around the
world to access information, express themselves and participate in local and
global discussions in real-time in ways previously thought unimaginable. The
194 Ibid
195 Privacy International, Biometrics, available at https://privacyinternational.org/topics/biometrics
196 Privacy International, Biometrics: Friend or foe of privacy?, available at
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PART F
flip side is the concern over the abuse of new technology, including
biometrics, by the State and private entities by actions such as surveillance
and large-scale profiling. This is particularly acute, given the fact that
technological advancements have far outpaced legislative change. As a
consequence, the safeguards necessary to ensure protection of human rights
and data protection are often missing. The lack of regulatory frameworks, or
the inadequacy of existing frameworks, has societal and ethical consequences
and poses a constant risk that the concepts of privacy, liberty and other
fundamental freedoms will be misunderstood, eroded or devalued.197
123 Privacy has been recognized as a fundamental human right in various
national constitutions and numerous global and regional human rights treaties.
In today’s digital age, the right to privacy is “the cornerstone that safeguards
who we are and supports our on-going struggle to maintain our autonomy and
self-determination in the face of increasing state power.”198
124 The proliferation of biometric technology has facilitated the invasion of
individual privacy at an unprecedented scale. The raw information at the heart
of biometrics is personal by its very nature.199 The Aadhaar Act recognises
this as sensitive personal information. Biometric technology is unique in the
sense that it uses part of the human body or behaviour as the basis of
authentication or identification and is therefore intimately connected to the

197 Ibid
198 Privacy International, Biometrics: Friend or foe of privacy?, available at
199 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013)
185
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individual concerned. While biometric technology raises some of the same
issues that arise when government agencies or private firms collect any
personal information about citizens, there are specific features that distinguish
biometric data from other personal data, making concerns about biometric
technology of particular importance with regard to privacy protection.200
125 There are two main groups of privacy- related interests that are directly
pertinent to the contemporary discussion on the ethical and legal implications
of biometrics.201 The first group falls under ‘informational privacy’ and is
concerned with control of personal information. The ability to control personal
information about oneself is closely related to the dignity of the individual, self-
respect and sense of personhood. The second interest group falls under the
rubric of ‘physical privacy’. This sense of privacy transcends the purely
physical and is aimed essentially at protecting the dignity of the human
person. It is a safeguard against intrusions into persons’ physical bodies and
spaces. Another issue is of property rights with respect to privacy, which
concerns the appropriation and ownership of interests in human personality. In
many jurisdictions, the basis of informational privacy is the notion that all
information about an individual is in some fundamental way their own
property, and it is theirs to communicate or retain as they deem fit.
200 Ibid
201 Ibid
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126 The collection of most forms of biometric data requires some
infringement of the data subject’s personal space. Iris and fingerprint scanners
require close proximity of biometric sensors to body parts such as eyes, hands
and fingertips.
Even in the context of law enforcement and forensic identification, the use of
fingerprinting is acknowledged to jeopardise physical privacy. Many countries
have laws and regulations which are intended to regulate such measures, in
order to protect the individual’s rights against infringement by state powers
and law enforcement. However, biometrics for the purpose of authentication
and identification is different as they do not have a specific goal of finding
traces related to a crime but are instead conducted for the purpose of
generating identity information specific to an individual. This difference in
purpose actually renders the collection of physical biometrics a more serious
breach of integrity and privacy. It indicates that there may be a presumption
that someone is guilty until proven innocent. This would be contrary to
generally accepted legal doctrine that a person is innocent until proven guilty
and will bring a lot of innocent people into surveillance schemes.
127 Concerns about physical privacy usually take a backseat as compared
to concerns about informational privacy. The reason for this is that physical
intrusion resulting from the use of biometric technology usually results from
the collection of physical information. However, for some people of specific
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cultural or religious backgrounds, even the mental harm resulting from
physical intrusion maybe quite serious.202
Another concern is that the widespread usage of biometrics substantially
undermines the right to remain anonymous.203 People desire anonymity for a
variety of reasons, including that it is fundamental to their sense of freedom
and autonomy. Anonymity may turn out to be the only tool available for
ordinary people to defend themselves against being profiled. Thus, it is often
argued that biometric technology should not be the appropriate choice of
technology as biometrics by its very nature is inconsistent with anonymity.
Given the manner in which personal information can be linked and identified
using biometric data, the ability to remain anonymous is severely diminished.
While some argue that “it is not obvious that more anonymity will be lost when
biometrics are used”, this argument may have to be evaluated in light of the
fact that there is no existing identifier that can be readily equated with
biometrics.204 No existing identifier can expose as much information as
biometric data nor is there any other identifier that is supposed to be so
universal, long-lasting and intimately linked as biometrics. To say that the use
of biometrics will not cause further loss of anonymity may thus be overly
optimistic. Semi-anonymity maybe possible, provided that the biometric
system is carefully designed from the inception.
202 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
203 Ibid
204 Ibid
188
PART F
Another significant change brought about by biometric technology is the
precipitous decline of ‘privacy by obscurity’, which is essentially “a form of
privacy afforded to individuals inadvertently by the inefficiencies of paper and

205
other legacy recordkeeping.” Now that paper records worldwide are giving
way to more efficient digital record-keeping and identification, this form of
privacy is being extinguished, and sometimes without commensurate data
privacy protections put in place to remedy the effects of the changes.”206
128 Biometrically enhanced identity information, combined with
demographic data such as address, age and gender, among other data, when
used in increasingly large, automated systems creates profound changes in
societies, particularly in regard to data protection, privacy, and security.
Biometrics are at the very heart of identification systems. There are numerous
instances in history where the persecution of groups of civilians on the basis
of race, ethnicity and religion was facilitated through the use of identification
systems. There is hence an alarming need to ensure that the on-going
development of identification systems be carefully monitored, while taking into
account lessons learnt from history.
129 It is important to justify the usage of biometric technology given the
invasion of privacy. When the purpose of collecting the biometric data is just
for authentication and there is little or no benefit in having stronger user

205 Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect
privacy in relation to measures in Europe and the U.S., Health and Technology (2017), Vol. 7, at pages 539–
567
206 Ibid.
189
PART F
identification, it is difficult to justify the collection of biometric information. The
potential fear is that there are situations where there are few or no benefits to
be gained from strong user verification / identification and this is where
biometric technology may be unnecessary.207 (Example: When ascertaining
whether an individual is old enough to go to a bar and drink alcohol, it is
unnecessary to know who the person is, when all that is needed to be
demonstrated is that the individual is of legal age). Fundamental rights are
likely to be violated in case biometrics are used for applications merely
requiring a low level of security.
130 Biometric data, by its very nature, is intrinsically linked to characteristics
that make us ‘humans’ and its broad scope brings together a variety of
personal elements. It is argued that the collection, analysis and storage of
such innate data is dehumanising as it reduces the individual to but a number.
Ultimately, organisations and governmental agencies must demonstrate that
there is a compelling legitimate interest in using biometric technology and that
an obligatory fingerprint requirement is reasonably related to the objective for
which it is required. One way of avoiding unnecessary collection of biometric
data is to set strict legal standards to ensure that the intrusion into privacy is
commensurate with and proportional to the need for the collection of bio-
metric data.208
207 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
208 Ibid
190
PART F
F.2 Consent in the collection of biometric data
131 Rules on the collection of physical data by government agencies usually
specify under what conditions a person can be required to provide fingerprints
and/or bodily tissues. If consent is required, rules are in place to regulate the
scope of consent. If forced searches are allowed, specifications are usually
provided as to how and by whom the search will be performed. Therefore, the
legal questions surrounding the issue should be:
(a) If required, what exactly should be the extent of coverage of the consent?
(b) When is the compulsory collection of biometric information required and
who is eligible to conduct it?
(c) What is the procedure to do so?
(d)What exactly should be filed and stored?
132 Biometric technology is far from being a mature technology and a
variety of errors inevitably occur. Mature technology is a popular term for any
technology for which any improvements in deployment are evolutionary rather
than revolutionary.209 Once a biometric system is compromised, it is
compromised forever. In the event of biometric identity theft, there would
appear to be no alternative but to withdraw the user from the system.
Passwords and numbers can be changed, but how does one change the basic
biological features that compromise biometrics in the event that there is a
theft?
209 Segen’s Medical Dictionary, 2012.
191
PART F
All of these parameters need to be applied to test the validity of the Aadhaar
legislation in a two-part inquiry: First, reports and steps taken by the
Government of India that guided the introduction and role of biometrics before
the enactment of the Aadhaar Act will be analysed, which will be followed by
an analysis of relevant provisions concerning the intersection of biometric
technology and privacy, as they are enshrined in the Aadhaar Act, 2016 and
supporting Regulations made under it.
F.3 Position before the Aadhaar legislation
Summary of Pre-Enactment Events
133 On 3 March 2006, the Department of Information Technology, Ministry
of Communications & Information Technology, gave its approval for
implementation of the project ‘Unique ID for Below Poverty Line Families’
(BPL) by the National Informatics Centre over a period of 12 months.210 This
was followed by a Processes Committee being set up a few months later on 3
July 2006, to suggest the processes for updation, modification, addition and
deletion of data from the core database to be created under the Unique ID
(“UID”) for BPL Families Project.211 The Processes Committee prepared a
210 Ministry of Communication & Information Technology, Department of Information Technology, Administrative
Approval for the project - “Unique ID for BPL families”, dated March 03, 2006 (Annexure R-1, List of Pre-
enactment dates and events for the Aadhaar project submitted by the Learned AG).
211 Department of Information Technology, Notification: Setting up of a Process Committee to suggest the
processes for updation, modification, addition & deletion of data and fields from the core database to be
created under the Unique ID for BPL families project, dated July 03, 2006 (Annexure R-2, List of Pre-
enactment dates and events for the Aadhaar project submitted by the learned AG).
192
PART F
paper titled ‘Strategic Vision: Unique Identification of Residents’212. The paper
recommended the linkage of the UID database with other databases which
would ensure continuous updation and user-based validation and use of the
Election Commission’s database as the base database.213 The document
inter-alia, also stated that statutory backing would be required for adoption of
UID in the long term;214 focus and conviction would be required on security
and privacy to ensure adoption by different stakeholders; 215 while
‘transparency vs. right to privacy’ was another challenge that would have to be
addressed.216 Biometrics, however, found no mention in the paper at this
stage.
Thereafter, on 4 December 2006, an Empowered Group of Ministers
(“EGoM”), was constituted with the approval of the Prime Minister to collate
the National Population Register (“NPR”) under the Citizenship Act 1955 and
the Unique Identification Number Project.217 In its meeting held on 27 April
2007, the Processes Committee decided that the UID database would evolve
in three stages: initial, intermediate and final. Biometrics was mentioned for
the first time in the context of UID, when the committee agreed that if the
infrastructure was available and the photograph and/or biometrics of a
212 Strategic Vision: Unique Identification of Residents, dated 26 November 2006 (Annexure R-3, List of Pre-
enactment dates and events for the Aadhaar project submitted by the learned AG).
213 Ibid
214 Ibid
215 Ibid
216 Ibid
217 Constitution of an Empowered Group of Ministers to collate two schemes - the National Population Register
under the Citizenship Act, 1955 and the Unique Identification Number (UID) project of the Department of
Information Technology (Annexure R-4, List of Pre-enactment dates and events for the Aadhaar project
submitted by the learned AG).
193
PART F
resident was obtainable along with other information, it would be captured in
the initial and intermediate stages as well.218 Subsequently, the EGoM
approved the establishment of a UID Authority under the Planning
Commission on 28 January 2008.219 while the strategy to collate NPR and UID
was also approved. The EGoM also agreed that the collection of data under
the NPR exercise could include collection of photographs and biometrics to
the extent feasible, while it was also resolved that the data collected under the
NPR would be handed over to the UID Authority for maintenance and
updation. The EGoM, in its fourth meeting dated 4 November 2008 decided
that initially, the UIDAI will be established as an executive body under the
Planning Commission for a period of 5 years. UIDAI, it was envisaged, will
create its database from the electoral roll of the ECI and verify it through
Below Poverty Line and Public Distribution System data, but it would also
have the authority to take its own decisions as to how a database should be
built.220 Consequently, the Government of India issued a notification on 28
January 2009 constituting the UIDAI as an attached office and executive
authority under the aegis of the Planning Commission.
218 Planning Commission, No. 4(4)/56/2005- C&I, Minutes of the Fifth Meeting of the Unique ID project under the
Chairmanship of Dr. Arvind Virmani (Annexure R-6, List of Pre-enactment dates and events for the Aadhaar
project submitted by the learned AG).
219 Minutes of the Second Meeting of the EGoM to collate two schemes - The National Population Register under
the Citizenship Act, 1955 and the Unique Identification number (UID) project of the Department of Information
Technology (Annexure R-10, List of Pre-enactment dates and events for the Aadhaar project submitted by the
learned AG).
220 Minutes of the Fourth Meeting of the EGoM to collate two schemes - The National Population Register under
the Citizenship Act, 1955 and the Unique Identification Number (UID) project of the Department of Information
Technology (Annexure R-12, List of Pre-enactment dates and events for the Aadhaar project submitted by the
learned AG).
194
PART F
134 Following the constitution of UIDAI, the Secretary, Planning
Commission addressed a letter to Chief Secretaries of all States/ UTs on 6
May 2009 enclosing a brief write up on UIDAI and UID numbers for resident
Indians. The letter included the concept, implementation strategy, model of the
project along with the role and responsibilities of the states/ UTs.221 It was also
decided that partner databases for two-way linkages between the UID
database and the partner databases for maintenance and continuous updation
of the UID databases would be ECI database, Ministry of Rural Development-
rural household survey database and the State ration card (PDS) databases.
135 The first meeting of the PM’s Council of UIDAI, was held on 12 August
2009. Various proposals were approved by the Council,222 by which it was
decided, among other things, that the proposal to designate UIDAI as an apex
body to set standards in the area of biometrics and demographic data
structures be approved. On 29 September 2009, UIDAI set up the Biometrics
Standards Committee (“BSC”) to frame biometric standards for UIDAI. The
Committee was assigned with the following mandate:223
● To develop biometric standards that will ensure interoperability of devices,
systems and processes used by various agencies that use the UID system.
221 Secretary, Government of India, Planning Commission, D.O. No. A-11016/02/09-UIDAI (Annexure R-22, List
of Pre-enactment dates and events for the Aadhaar project submitted by the learned AG).
222 Planning Commission, Minutes of the meeting of the PM’s Council of UIDAI (Annexure R-35, List of Pre-
223 Planning Commission, UIDAI, Office Memorandum, available at
https://www.uidai.gov.in/images/resource/Biometric_Standards_Committee_Notification.pdf.
195
PART F
● To review the existing standards of Biometrics and, if required,
modify/extend/enhance them so as to serve the specific requirements of
UIDAI relating to de-duplication and Authentication.
This was followed by the creation of the Demographic Data Standards and
Verification Procedure Committee (“DDSVPC”) on 9 October 2009, with the
following mandate:224
● Review/ modify/ extend/ enhance the existing standards of Demographic
data and recommend the Demographic Data standards (The data fields
and their formats/structure, etc.) that will ensure interoperability and
standardization of basic demographic data and their structure used by
various agencies that use the UID system; and
● Recommend the Process of Verification of this demographic data in order
to ensure that the data captured, at the time of enrolment of the residents
into the UID system, is correct.
136 The DDSVPC in its report dated 9 December 2009, stated that UIDAI
had selected biometrics features as the primary method to check for duplicate
identity. In order to ensure that an individual was uniquely identified in an easy
and cost-effective manner, it was necessary to ensure that the captured
biometric information was capable of carrying out de-duplication at the time
when information was collected.225 The Know Your Resident (“KYR”)
224 DDSVPC (UIDAI), DDSVPC Report, dated 09 December 2009, available at

https://uidai.gov.in/images/UID_DDSVP_Committee_Report_v1.0.pdf ,at pages 5-6.
225 Ibid, at page 4
196
PART F
verification procedure was introduced to ensure that “key demographic data is
verified properly so that the data within UID system can be used for
authentication of identity by various systems”. Three distinct methods of
verification were to be acceptable under UID. Verification could be based on
● Supporting documents;
● An introducer system under which a network of “approved” introducers can
introduce a resident and vouch for the validity of the resident’s information;
and (This idea was borrowed from the account opening procedure in the
banks.)
● The process adopted for public scrutiny in the National Population
Register.
137 In order to verify the correctness of certain mandatory fields, such as
name, date-of-birth, and address, a “Proof of Identity” (PoI) and “Proof of
Address” (PoA) would be required. This would comprise of documents
containing the resident’s name and photograph and the name and address,
respectively. On 9 April 2010, the collection of iris biometrics for the NPR
exercise was approved.226
138 A strategy overview issued by UIDAI in April 2010 described the
features, benefits, revenue model and timelines of the project.227 The survey
226 Annexure R-43, Volume II, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG
227 UIDAI, UIDAI Strategy Overview, available at
http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf.
197
PART F
outlined that UIDAI would collect the following demographic and biometric
information from residents in order to issue a UID number:
● Name
● Date of birth
● Gender
● Father's/ Husband's/ Guardian's name and UID number (optional for adult
residents)
● Mother's/ Wife's/ Guardian's name and UID number (optional for adult
residents)
● Introducer's name and UID number ( in case of lack of documents)
● Address
● All ten fingerprints, photograph and both iris scans
On 12 May 2010, a note outlining the background of UIDAI, and proposing an
approach for collection of demographic and biometric attributes of residents
for the UID project was submitted to the Cabinet Committee on UIDAI. 228
Permission of the Union Cabinet was sought to ensure that the approach
which was proposed should be adhered to by the Registrar General of India
for the NPR exercise and by all other Registrars in the UID system. The
rationale behind the inclusion of iris biometrics and the need for capturing iris
scans at the time of capturing biometric details was also explained.
This was followed by the introduction of the National Identification Authority of
India Bill, 2010 (NIAI Bill) in the Rajya Sabha on 3 December 2010. On 13
February 2011, the one millionth Aadhaar card was delivered. Thereafter, on
228Annexure R-46, Volume II, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG
198
PART F
11 April 2011, the Central Government notified the Information Technology
(Reasonable security practices and procedures and sensitive personal data or
information) Rules, 2011 [“IT Rules”] under Section 43A of the IT Act, 2000.
On 29 September 2011, the Aadhaar project completed one year. An
announcement was made of the generation of ten crore enrolments and of
more than 3.75 crore Aadhaar numbers.
Analysis of UIDAI Reports & Rights of Registrars
A. Biometrics Standards Committee (BSC) Report
139 BSC in its report dated 30 December 2009 stated that it held extensive
meetings and discussions with international experts and technology suppliers.
A technical sub-group was formed to collect Indian fingerprints and analyze
quality. Over 2,50,000 fingerprint images from 25,000 persons were sourced
from the districts of Delhi, UP, Bihar and Orissa. Nearly all the images were
from rural regions, and were collected by different agencies using different
capture devices, and through different operational processes. The BSC report
is silent about the pretext on which fingerprints of 25,000 people were
collected. This action of UIDAI raises privacy concerns especially since the
fingerprints were collected from rural regions where people may not have
been aware or made aware by UIDAI before collection of fingerprints, of the
possible privacy harms of giving up biometrics.
199
PART F
BSC after reviewing international standards and current national
recommendations, concluded that a fingerprints-based biometric system was
to be at the core of UIDAI’s de-duplication efforts and that the ISO 19794
series of biometrics standards for fingerprints, face and iris set by the
International Standards Organization (ISO) were most suitable for the UID
project.229 BSC also observed that while a fingerprints-based biometric system
shall be at the core of UIDAI’s de-duplication efforts, its accuracy in the Indian
context could not predicted in the absence of empirical data:
“The Committee notes that face is the most commonly

captured biometric, and frequently used in manual checking.
However, stand-alone, automatic face recognition does not
provide a high level of accuracy, and can only be used to
supplement a primary biometric modality. Fingerprinting, the
oldest biometric technology, has the largest market share of
all biometrics modalities globally. … Based on these factors,
the Committee recognizes that a fingerprints-based
biometrics system shall be at the core of the UIDAI’s de-
duplication efforts…
The Committee, however, is also conscious of the fact that

de-duplication of the magnitude required by the UIDAI has
never been implemented in the world. In the global context, a
de-duplication accuracy of 99% has been achieved so far,
using good quality fingerprints against a database of up to
fifty million. Two factors, however, raise uncertainty about the
accuracy that can be achieved through fingerprints. First,
retaining efficacy while scaling the database size from fifty
million to a billion has not been adequately analyzed. Second,
fingerprint quality, the most important variable for determining
de-duplication accuracy, has not been studied in depth in the
Indian context.”230
140 In its report for discussion titled “Technical Standards for Digital Identity
Systems for Digital Identity”, the Identification for Development (ID4D)
initiative, a cross-departmental effort report of the World Bank, noted that
229 UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4
230 Ibid.
200
PART F
UIDAI had not implemented “an important security standard, ISO 24745,
which provides guidance for the protection of biometric information for
confidentiality and integrity during storage or managing identities … due to the
complexity of applicable compliance procedures” for the Aadhaar system. 231
Proponents of the program argue that in all fairness to UIDAI, it has to be
noticed that the ISO 24745 standard was published in August 2011 whereas
the report of BSC had already been submitted to UIDAI in January 2010.
However, Mr. Myung Geun Chun, the Project Editor of ISO 24745, is reported
to have stated that ISO 24745 standard is an ‘invaluable tool’ for addressing
‘unique privacy concerns’ like ‘unlawful processing and use of data’ raised by
biometric identification because of its binding nature ‘which links biometrics
with personally identifiable information’.232
ISO 24745 seeks to “safeguard the security of a biometric system and the
privacy of data subjects with solid countermeasures”.233 ISO 24745 standard
specifies:
● “Analysis of threats and countermeasures inherent in

biometric and biometric system application models;
● Security requirements for binding between a biometric
reference and an identity reference;
● Biometric system application models with different
scenarios for the storage and comparison of biometric
references;
● Guidance on the protection of an individual’s privacy during
the processing of biometric information.”234
231 Identification for Development (World Bank Group), Technical Standards for Digital Identity Systems for Digital
Identity Draft for Discussion, available at http://pubdocs.worldbank.org/en/579151515518705630/ID4D-
Technical-Standards-for-Digital-Identity.pdf, at page 22.
232 Katie Bird, Is your biometric data safe online? ISO/IEC standard ensures security and privacy, (11 August
2011), available at https://www.iso.org/news/2011/08/Ref1452.html.

233 Ibid.
234 Ibid.
201
PART F
B. Strategy Overview of 2010
In this report, a balance was sought to be struck between ‘privacy and
purpose’ in respect of the information of the residents which was collected.
The report states that ‘agencies’ may store the information of the residents at
the time of enrolment, but they will not have access to the information stored
in the UID database.235 Further, for the purposes of authentication, requests
made by the agencies would be answered through a ‘Yes’ or a ‘No’ response
only.236 Under the sub-heading “Protecting Privacy and Confidentiality”, the
report stated that the additional information which was being sought from
people was only biometric information like fingerprints and iris scans, as other
information was already available with public and private agencies in the
country.237 Right to privacy and confidentiality were sought to be protected by
putting necessary provisions “in place”.238 It was also observed in the context
of privacy that loss of biometric information of a resident who is a victim of
identity theft, especially when such information is linked to banking, social
security and passport records, risks financial and other assets and the
reputation of the resident.239 According to the review, the envisaged UIDAI Act
(which was still under contemplation at the time of publishing of this report and
had not yet been legislated) would have remedies for the following offences:

http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW. pdf, at page 4
236 Ibid.
238 Ibid.
202
PART F
● “Unauthorized disclosure of information by anyone in

UIDAI, Registrar or the Enrolling agency;
● Disclosure of information violating the protocols set in place
by UIDAI;
● Sharing any of the data on the database with anyone;
● Engaging in or facilitating analysis of the data for anyone;
● Engaging in or facilitating profiling of any nature for anyone
or providing information for profiling of any nature for
anyone;
● All offences under the Information Technology Act shall be
deemed to be offences under UIDAI if directed against
UIDAI or its database.”240
However, according to the report, UIDAI was to concern itself only with identity
fraud and any grievances in respect of document fraud (counterfeit/
misleading documents) were to be left to the Registrar enrolling the
resident.241
141 The following conclusions emerge from the UIDAI’s strategy overview:
Firstly, the UIDAI was aware of the importance of biometric information before
the Aadhaar programme had been rolled out. Secondly, UIDAI had itself
contemplated a scenario of identity theft which could occur at the time of
enrollment for Aadhaar cards. However, it had no solution to the possible
harms which could result after the identity theft of a person, more so when the
potential ‘UIDAI Act’ was still in the pipeline and was not eventually enacted
until 2016.
240 Ibid.
203
PART F
C. Registrars
142 The term ‘Registrar’ was first defined by UIDAI in its DDSVPC Report as
“any government or private agency that will partner with UIDAI in order to
enroll and authenticate residents”.242 In the Strategy Overview, the term was
defined as “agencies such as central and state departments and private sector
agencies who will be ‘Registrars’ for the UIDAI”.243
The Strategy Overview also stated that:
“Registrars will process UID applications, and connect to the

CIDR to de-duplicate resident information and receive UID
numbers. These Registrars can either be enrollers, or will
appoint agencies as enrollers, who will interface with people
seeking UID numbers. The Authority will also partner with
service providers for authentication. If the Registrar issues a
card to the resident, the UIDAI will recommend that the card
contain the UID number, name and photograph. They will be
free to add any more information related to their services
(such as Customer ID by bank). They will also be free to
print/ store the biometric collected from the applicant on
the issued card. If more registrars store such biometric
information in a single card format, the cards will become
interoperable for offline verification. But the UIDAI will not
insist on, audit or enforce this.”244 (Emphasis supplied)
143 In the ‘Aadhaar Handbook for Registrars 2010’ (“2010 Handbook”),
following policy guidelines were laid down in respect of Registrars:
1. “Registrars may retain the biometric data collected from

residents enrolled by them. However, the Registrar will have to
exercise a fiduciary duty of care with respect to the data
collected from residents and will be responsible for loss,
unauthorized access to and misuse of data in their custody.
2. In order to ensure data integrity and security, the biometrics
captured shall be encrypted upon collection by using the
242 DDSVPC (UIDAI), DDSVPC Report, (9 December 2009), available at

https://uidai.gov.in/images/UID_DDSVP_Committee_Report_v1.0. pdf , at page 5
http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf, at page 2
204
PART F
encryption key defined by the Registrar. It is the responsibility

of the Registrar to ensure the safety, security and
confidentiality of this data which is in their custody. The
Registrar must protect the data from unauthorized access and
misuse. The UIDAI will define guidelines for the storage of
biometric data in order to give the Registrar some
guidance on ensuring security of the data. The Registrar
shall have to define their own security policy and protocols to
ensure safety of the Biometric data. The Registrars shall bear
liability for any loss, unauthorized access and misuse of this
data. In the interest of transparency, it is recommended
that the Registrar inform the resident that they will be
keeping the biometric data and also define how the data
will be used and how it will be kept secure.”245
(Emphasis supplied)
In the ‘Aadhaar Handbook for Registrars 2013’ (“2013 Handbook”), it was
stated that “UIDAI has defined security guidelines for the storage of
biometric data”.246 While it is indicated in the handbook that guidelines for
storage were defined by UIDAI, it is evident that this took place only after 2010
before which the registrars were functioning without guidelines mandating how
the biometric data was to be kept secure.
The following guideline finds mention both in the Handbook of 2010 and 2013:
“In the interest of transparency, it is recommended that the

Registrar inform the resident that they will be keeping the
biometric data and also define how the data will be used and
how it will be kept secure”.247
However, it is apparent from this guideline that it was merely a
recommendation to the Registrars, and no obligation was cast upon the
245 UIDAI, Aadhaar Handbook for Registrars, available at

http://doitc.rajasthan.gov.in/administrator/Lists/Downloads/Attachments/26/aadhaar_handbook_version. pdf,
at page 11
246 Annexure R-74, Volume III, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG.
247 UIDAI (Planning Commission), Aadhaar Handbook for Registrars (2010), available at
http://indiamicrofinance.com/wp-content/uploads/2010/08/Aadhaar-Handbook. pdf, at page 11; UIDAI
(Planning Commission), Aadhaar Handbook for Registrars (2013), at page 16 (Annexure R-74, List of Pre-
205
PART F
Registrars, to inform residents that their biometric data will be stored by them
and how the data was to be used and kept secure. In contrast, Regulation 5 of
the Aadhaar (Sharing of Information) Regulations 2016, states:
“Responsibility of any agency or entity other than

requesting entity with respect to Aadhaar number. —
(1) Any individual, agency or entity which collects

Aadhaar number or any document containing the
Aadhaar number, shall: (a) collect, store and use the
Aadhaar number for a lawful purpose; (b) inform the
Aadhaar number holder the following details:— i. the
purpose for which the information is collected; ii.
whether submission of Aadhaar number or proof of
Aadhaar for such purpose is mandatory or voluntary, and
if mandatory, the legal provision mandating it; iii.
alternatives to submission of Aadhaar number or the
document containing Aadhaar number, if any; (c) obtain
consent of the Aadhaar number holder to the collection,
storage and use of his Aadhaar number for the specified
purposes.
(2) Such individual, agency or entity shall not use the
Aadhaar number for any purpose other than those specified
to the Aadhaar number holder at the time of obtaining his
consent.
(3) Such individual, agency or entity shall not share the
Aadhaar number with any person without the consent of the
Aadhaar number holder.” (Emphasis supplied)
144 What the Registrar is obliged to do under law after the enactment of the
Aadhaar Act, was a recommendation to the Registrar prior to the enactment of
the Aadhaar Act. Thus, it is uncertain whether residents were informed about
where and how their data would be kept secure since the guidelines to the
Registrars were only recommendatory in nature. Similarly, in a UIDAI
document titled ‘Roles and Responsibilities of Enrollment Staff, 2017’, one of
the ‘Fifteen Commandments that an Operator must remember during Resident
Enrollment’ is “Make sure that the resident is well informed that his/her
206
PART F
biometric will only be used for Aadhaar Enrolment/Update and no other
purpose”.248 However, in the UIDAI document titled ‘Enrollment Process
Essentials, 2012’, there is no mention of any such obligation being placed
upon the enrolment staff.249 In the absence of informed consent for the
collection of data, a shadow of potential illegality is cast.
F.4 Privacy Concerns in the Aadhaar Act
1 Consent during enrolment and authentication & the right to access

information under the Aadhaar Act
145 Section 3(2) of the Aadhaar Act requires enrolment agencies to inform
the individual being enrolled about: a) the manner in which information shall
be used; b) the nature of recipients with whom the information is to be shared
during authentication; and c) the existence of a right to access information.
However, the Enrolment Form in Schedule I of the Enrolment Regulations
does not offer any clarification or mechanism on how the mandate of Section
3(2) is to be fulfilled.
The right of an individual to access information related to his or her
authentication record is recognized in Section 3(2)(c) and Section 32(2) of the
248 UIDAI, Roles and Responsibilities of Enrolment Staff, available at

https://idai.gov.in/images/annexure_b_roles_and_responsibility_of_enrolment_staff. Pdf , at page 8
249UIDAI, Enrolment Process Essentials (13 December 2012), available at
http://www.nictcsc.com/images/Aadhaar%20Project%20Training%20Module/English%20Training%20Module/
module2_aadhaar_enrolment_process17122012. pdf
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Aadhaar Act. However, the supplementary regulations that complement the
Act are bereft of detail on the procedure to access such information.
Similarly, Regulation 9(c) of the Enrolment Regulations states that the
procedure for accessing data would be provided to residents through the
enrolment form, which is found in Schedule I to the Enrolment Regulations.
However, all that Schedule I states is: “I have a right to access my identity
information (except core biometrics) following the procedure laid down by
UIDAI”, without any such procedure actually being laid down.
146 Section 2(I) of the Act, which defines an enrolling agency read with
Regulation 23 of the Aadhaar (Enrolment and Update) Regulations allows for
the collection of sensitive personal data (demographic and biometric
information) of individuals by private agencies, which also have to discharge
the burden of explaining the voluntary nature of Aadhaar registration and
obtaining an individual’s informed consent.
The Authentication Regulations, framed under sub-section (1), and sub-
clauses (f) and (w) of sub-section (2) of Section 54 of the Aadhaar Act deal
with the authentication framework for Aadhaar numbers, the governance of
authentication agencies and the procedure for collection, storage of
authentication data and records. Regulation 5 (1) states what details shall be
made available to the Aadhaar number holder at the time of authentication
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which are a) the nature of information that will be shared by the Authority upon
authentication, (b) the uses to which the information received during
authentication may be put; and (c) alternatives to submission of identity
information. Regulation 6 (2) mandates that a requesting entity shall obtain the
consent of an Aadhaar number holder for authentication in physical or,
preferably, in electronic form and maintain logs or records of the consent
obtained in the manner and form as may be specified by the Authority for this
purpose.
Although Regulation 5 mentions that at the time of authentication, requesting
entities shall inform the Aadhaar number holder of alternatives to submission
of identity information for the purpose of authentication, and Regulation 6
mandates that the requesting entity shall obtain the consent of the Aadhaar
number holder for the authentication, in neither of the above circumstances do
the regulations specify the clearly defined options that should be made
available to the Aadhaar number holder in case they do not wish to submit
identity information, nor do the regulations specify the procedure to be
followed in case the Aadhaar number holder does not provide consent. This is
a significant omission. Measures for providing alternatives must be defined in
all identity systems, particularly those that are implemented on a large scale.
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2 Extent of information disclosed during authentication & sharing of
core biometric information
147 Section 8(4) of the Act permits the Authority to respond to an
authentication query with a “positive, negative or any other appropriate
response sharing such identity information excluding any core biometric
information”. The petitioners have argued that the wide ambit of this provision
gives the Authority discretion to respond to the requesting entity with
information including an individual’s photograph, name, date of birth, address,
mobile number, email address and any other demographic information that
was disclosed at the time of enrolment.
Moreover, it must be realized that even if core biometric information cannot be
shared, demographic information is nonetheless, sensitive. Regulation 2(j) of
the Authentication Regulations250 provides that a digitally signed response
with e-KYC data251 [which is defined in Regulation 2(k)] can be returned to the
requesting entity, while Regulation 3(ii)252 provides for this form of
authentication (e-KYC) by UIDAI.
250 Regulation 2(j) of Aadhaar (Authentication) Regulations: “e-KYC authentication facility” means a type of
authentication facility in which the biometric information and/or OTP and Aadhaar number securely submitted
with the consent of the Aadhaar number holder through a requesting entity, is matched against the data
available in the CIDR, and the Authority returns a digitally signed response containing e-KYC data along with
other technical details related to the authentication transaction.
251 Regulation 2(k) of Aadhaar Authentication Regulations: “e-KYC data” means demographic information and
photograph of an Aadhaar number holder.

252 Regulation 3(ii) of Aadhaar (Authentication) Regulations, 2016: “3. Types of Authentication-There shall be
two types of authentication facilities provided by the Authority, namely— (i) Yes/No authentication
facility, which may be carried out using any of the modes, (ii) e-KYC authentication facility, which may be
carried out only using OTP and/ or biometric authentication modes as specified in regulation 4(2)”.
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PART F
148 Section 29(1) of the Aadhaar Act expressly states that ‘core biometric
information can never be shared with anyone for any reason whatsoever or be
used for any purpose other than generation of Aadhaar numbers and
authentication under this Act’. However, this provision which seemingly
protects an individual’s core biometric information from being shared is
contradicted by Section 29(4)253 of the Act, the proviso to which grants UIDAI
the power to publish, display or post core biometric information of an individual
for purposes specified by the regulations. The language of this section is
overbroad and which could lead to transgressions and abuse of power.
Moreover, sub-sections 29(1) and (2), in effect, create distinction between two
classes of information (core biometric information and identity information),
which are integral to individual identity. Identity information requires equal
protection as provided to core biometric information.
3 Expansive scope of biometric information
149 Definitions of biometric information [Section 2(g)], core biometric
information [Section 2(j)] and demographic information [Section 2(k)] under
the Aadhaar Act are inclusive and expansive. Section 2(g) defines 'biometric
information' as “photograph, fingerprint, iris scan, or such other biological
attributes of an individual as may be specified by regulations”. Section 2(j)
defines ‘core biometric information’ as “fingerprint, Iris scan, or such other
253 Section 29(4) states: “No Aadhaar number or core biometric information collected or created under this Act in
respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes
as may be specified by regulations.”
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PART F
biological attribute of an individual as may be specified by regulations”.
Section 2(t) explains that the regulations are to be made by UIDAI, which is
the supreme authority under the Act. Sections 2(g), (j), (k) and (t) give
discretionary power to UIDAI to define the scope of biometric and
demographic information. Although the Act specifically provides what
information can be collected, it does not specifically prohibit the collection of
further biometric information. The scope of what can, in addition, be collected,
has been left to regulations. These provisions empower UIDAI to expand on
the nature of information already collected at the time of enrolment, to the
extent of also collecting ‘such other biological attributes’ that it may deem fit by
specifying it in regulations at a future date.
The definitions of these sections provide the government with unbridled
powers to add to the list of biometric details that UIDAI can require a citizen to
part with during enrolment which might even amount to an invasive collection
of biological attributes including blood and urine samples of individuals.
4 Other concerns regarding the Aadhaar Act: Misconceptions

regarding the efficacy of biometric information
150 The uniqueness of a fingerprint in forensic science remains an
assumption without watertight proof. The uniqueness of biometric data is not
absolute, it is relative. Not everyone will have a particular biometric trait, or an
individual’s biometric trait may be significantly different from the ‘normal’
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PART F
expected trait. Some people may be missing fingerprints due to skin or other
disease, which may cause further problems when enrolling a large population
in a fingerprint-based register. Discrimination concerns may also be raised in
such a case. Therefore, a large scale biometric scheme will usually need to
utilise more than one biometric. For example- both fingerprint and face to
ensure all people can be enrolled.254
The stability of even so called stable types of biometric data is not absolute.
Each time an individual places a fingerprint on a fingerprint reader, the pattern
may appear to be the same from a short distance, but there are actually small
differences in the pattern due to dryness, moisture and elasticity of the skin.
Moreover, cuts and scratches can alter the pattern. Similarly, even the iris, a
popular biometric measurement suffers from difficulties in obtaining a valid
image. The iris can also be hindered by specula reflections in uncontrolled
lighting situations. These problems also apply to other relatively stable
biometric identifiers.255
151 Sections 6256 and 31(2)257 of the Aadhaar Act place an additional onus
on individual Aadhaar holders to update their information. These provisions
254Ramesh Subramanian, Computer Security, Privacy & Politics: Current Issues, Challenges & Solutions, IRM
Press, at pages 99-100
255Ibid, at page 100
256Section 6 states: “The Authority may require Aadhaar number holders to update their demographic information
and biometric information, from time to time, in such manner as may be specified by regulations, so as to
ensure continued accuracy of their information in the Central Identities Data Repository.”
257Section 31(2) states: “In case any biometric information of Aadhaar number holder is lost or changes
subsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary
alteration in his record in the Central Identities Data Repository in such manner as may be specified by
regulations.”
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PART F
create a legal mandate on individuals to ensure that their information is
accurate within the CIDR. It is an acknowledgement that an individual’s
biometric information may change from time to time. Natural factors like
ageing, manual labour, injury and illness can cause an individual’s biometric
information to be altered over the course of a lifetime. Critics of the Aadhaar
program however point to the fact that provisions for updation fly in the face of
UIDAI’s repeated advertisements that Aadhaar enrolment is a “one-time”
affair, as it is not and will never be. Moreover, there is no way in which a
person can estimate that he or she is due for an update, as this is not
something that can be discerned by actions as innocuous as looking in the
mirror or at one’s fingers, and therefore there remains no objective means of
complying with the above sections. In fact, an authentication failure and a
subsequent denial of welfare benefits, a subsidy or a service that an individual
is entitled to might be the only way one comes to the conclusion that his or her
biometrics need to be updated in the CIDR.258
Moreover, since the promise of Aadhaar as a unique identity hinges on the
uniqueness of biometrics, it would be logical to assume that any update to
biometric data should go through the same rigour as a new enrolment.
Regulation 19(a), entitled ‘Modes of Updating Residents Information’ under
Chapter IV of the Aadhaar (Enrolment and Update) Regulations, 2016
provides:
258 L. Vishwanath, Four Reasons You Should Worry About Aadhaar's Use of Biometrics, The Wire (28 March,
2017), available at https://thewire.in/rights/real-problem-aadhaar-lies-biometrics
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PART F
“19. Mode of Updating Residents Information:

a) At any enrolment centre with the assistance of the operator
and/or supervisor. The resident will be biometrically
authenticated and shall be required to provide his Aadhaar
number along with the identity information sought to be
updated.”
This raises the question as to how an individual will update his/her biometric
information. If the biometric information stored in CIDR has changed, the
present biometrics will lead to mismatch during authentication. This
Regulation does not provide any real clarity on how updation should be taking
place in practice for the following reasons:
1. As required by the regulation, can an individual be asked to undergo
biometric authentication, when the purpose is to update the biometrics?
2. Does the provision amount to an implied expectation that an individual is
supposed to revisit the enrolment centre before all ten fingers and two
irises (core biometric information) are rendered inaccurate for the
purposes of authentication?259
This is also evidence of the fact that an Aadhaar enrolment is not a one-time
affair.
5 No access to biometric records in database
152 The proviso to Section 28(5)260 of the Aadhaar Act disallows an
individual access to the biometric information that forms the core of his or her
259 Ibid.
260 Section 28(5) states: “Notwithstanding anything contained in any other law for the time being in force, and
save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency
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PART F
unique ID (Aadhaar). The lack of access is problematic for the following
reasons: First, verification of whether the biometrics have been recorded
correctly or not in the first place is not possible. This becomes critical when
that same information forms the basis of identity and is the basis of
authentication and subsequent access to welfare benefits and other services.
Second, there is a great potential for fraudulently replacing a person’s
biometric identity in the database, as the individual has no means to verify the
biometric information that has been recorded at the time of enrolment. Even
an entity like the enrolment operator (with a software hack) could upload
someone else’s biometrics against another person.261 Denial of access to the
individual violates a fundamental principle of data protection: ownership of the
data must at all times vest with the individual. Overlooking this fundamental
principle is manifestly arbitrary and violative of Article 14.
6 Biometric locking
153 Authentication Regulations 11 (1) and (4) provide for the facility of
Biometric Locking. Regulation 11(1) provides:
“The Authority may enable an Aadhaar number holder to

permanently lock his biometrics and temporarily unlock it
when needed for biometric authentication.”
that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal
any information stored in the Central Identities Data Repository or authentication record to anyone:
Provided that an Aadhaar number holder may request the Authority to provide access to his identity information
excluding his core biometric information in such manner as may be specified by regulations.”
261 L. Vishwanath, Four Reasons You Should Worry About Aadhaar's Use of Biometrics, The Wire (28 March,
2017), available at https://thewire.in/rights/real-problem-aadhaar-lies-biometrics
216
PART F
Regulation 11(4) provides:
“The Authority may make provisions for Aadhaar number

holders to remove such permanent locks at any point in a
secure manner.”
The provision allowing biometric locking is salutary to the extent that it allows
Aadhaar number holders to permanently lock their biometrics and temporarily
unlock them only when needed for biometric authentication. But the regulation
is problematic to the extent that it also empowers the UIDAI to make
provisions to remove such locking without any specified grounds for doing
so.262
7 Key takeaways
154 The use of biometric technology is only likely to grow dramatically both
in the private and public sector. On our part, we can only ensure that the
strides made in technology are accompanied by stringent legal and technical
safeguards so that biometrics do not become a threat to privacy.263
155 There is no unique concept of privacy and there maybe trade-offs
between privacy and other objectives.264 The challenge regarding privacy is
best put in the following words:
262 The Centre for Internet & Society, Analysis of Key Provisions of the Aadhaar Act Regulations, (31 March,
2017), available at https://cis-india.org/internet-governance/blog/analysis-of-key-provisions-of-aadhaar-act-
regulations.
263 A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner Canada (1999), available at
http://www.ipc.on.ca/images/Resources/pri-biom.pdf
264 Robert Gellman. Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for
Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August
2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0. pdf
217
PART F
“The definition of privacy in any jurisdiction must take into

account cultural, historical, legal, religious and other local
factors. One size may not fit all countries, regions, or cultures
when it comes to privacy or to some elements of privacy. In
addition, views of privacy change as time passes and
technology advances. However, different perspectives are not
a barrier to evaluating privacy but a challenge.”265
The relationship between biometrics and privacy is completely shaped by the
design of the systems and the framework within which private and personal
data is handled. Unfortunately, particularly in developing countries the
adoption of biometrics has not been accompanied by an adequate discussion
of privacy concerns.266 Biometrics can also be a “staunch friend of privacy”
when the technology is used for controlling access and to restrict unauthorized
personnel from gaining access to sensitive personal information. 267 While
evaluating privacy consequences of biometric technology, it is also important
to bear in mind that there cannot be an assumption that current privacy
protections which may be appropriate for the present state of technology will
also be sufficient in the future.268 Technology will continue to develop as will
the need to develop corresponding privacy protections. Concerns around
privacy and data protection will have to be addressed. “Fair Information
Practices (FIPs), Privacy by Design (PbD), and Privacy Impact Assessments
(PIAs)”269 might be useful in addressing these concerns. FIPs offer the
substantive content for a privacy policy. PbD offers a proactive approach to
265 Ibid
266 Ibid
267John D Woodward, Biometrics: Identifying Law & Policy Concerns, in Biometrics (AK Jain A.K, R Bolle, and S
Pankanti eds.), Springer (1996)

268Robert Gellman, Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for
Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August,
2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0.pdf
269Ibid
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PART F
the protection of privacy that relies on advance planning rather responding to
problems after they arise. PIAs offer a formal way to consider and assess the
privacy consequences of technology or other choices, including consideration
of alternatives early in the planning stages. These three methodologies are
not mutually exclusive and can be combined to achieve the just and optimal
result for society.270
156 Of particular significance is the “Do Not Harm” principle which means
that biometrics and digital identity should not be used by the issuing authority,
typically a government, or adjacent parties to serve purposes that could harm
the individuals holding the identification.271 Identity systems, whether in paper
or digital, must work for the public good and must do no harm. However,
identity systems due to their inherent power, can cause harm when placed
into hostile hands and used improperly. Great care must be taken to prevent
this misuse. “Do No Harm” requires rigorous evaluation, foresight, and
continual oversight.272
157 There are many adversarial actors – from private espionage groups to
foreign governments, who may try to exploit data vulnerabilities. There is also
the threat of abuse of power by future governments. However, creating and
instilling strong privacy protection laws and safeguards may decrease these
270 Ibid
271Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect privacy
in relation to measures in Europe and the U.S., Health and Technology, Vol. 7 (2017), at pages 539–567
272 Ibid
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PART G
risks- such as the framework provided by the EUGDPR273. In order to uphold
democratic values, the government needs to curtail its own powers concerning
the tracking of all citizens and prevent the needless collection of data. Such
protections may assuage the fears and uphold the long-term legitimacy of
Aadhaar. If the legislative process takes into account public feedback and
addresses the privacy concerns regarding Aadhaar, it would provide a solid
basis for more digital initiatives, which are imminent in today’s digital age.
However, in its current form, the Aadhaar framework does not address the
privacy concerns issues discussed in this section of the judgment.
G Legitimate state aim
G.I Directive Principles
158 The Union government has contended that the legitimate state interest
in pursuing the Aadhaar project flows from the solicitous concern shown in the
text and spirit of the Constitution for realising socio-economic rights. The right
to food must, according to the view proposed before the Court, trump over the
right to privacy. The Aadhaar project, it has been urged, seeks to fulfil socio-
economic entitlements.
159 The Constituent Assembly did not work in a vacuum. The idealism with
which the members of the Assembly drafted the Constitution was the result of
273 General Data Protection Regulation, available at https://gdpr-info.eu/
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PART G
the “social content of the Independence movement”274, which came from the
awareness of the members about the existing conditions of the Indian
masses. Granville Austin has therefore referred to the Constitution as a “social
document” and a “modernizing force”, whose provisions reflect “humanitarian
sentiments”.275 The Constitution was the medium through which the nascent
Indian democracy was to foster many goals. Austin observes:
“Transcendent among [the goals] was that of social

revolution. Through this revolution would be fulfilled the
basic needs of the common man, and, it was hoped, this
revolution would bring about fundamental changes in the
structure of Indian society.”276 (Emphasis supplied)
Austin has further observed:
“The first task of [the] Assembly… [was] to free India through

a new constitution, to feed the starving people, and to clothe
the naked masses, and to give every Indian the fullest
opportunity to develop himself according to his capacity.”277
In his work titled “The Constitution of India: A Contextual Analysis”, Arun K
Thiruvengadam identified one such goal of the Constitution as follows:
“The Indian Constitution sought to lay the blueprint for

economic development of the vast subcontinental nation,
which was an imperative for a populace that was largely
illiterate, poor and disproportionately situated in rural societies
that had limited access to many essential social goods and
infrastructural facilities.278”
.
“By establishing these positive obligations of the state, the
members of the Constituent Assembly made it the
responsibility of future Indian governments to find a middle
way between individual liberty and the public good,
274 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page xxii
275 Ibid, at pages 62, xiii and xxii
276 Ibid, at page xxi
278 Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis, (Bloomsbury 2017), at page 1
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PART G
between preserving the property and the privilege of the

few and bestowing benefits on the many in order to
liberate ‘the powers of all men equally for contributions
to the common good’.”279 (Emphasis supplied)
160 The draftpersons of the Constitution believed that the driving force to
bring social change rested with the State. This is evident from an instance
during the proceedings of the Constituent Assembly. Dr. B R Ambedkar had
submitted to the Assembly a social scheme to be incorporated into the
Constitution, which included provisions to cover every adult Indian by life
insurance. However, his social scheme was rejected on the ground that such
provisions should be left to legislation and need not be embodied into the
Constitution.280
161 The social and economic goals which were contemplated at the time of
Independence remain at the forefront of the State’s agenda even today.
Certain parts of the Constitution play a leading role in declaring the blueprint
of its social intent. Directive Principles were specifically incorporated into the
Constitution for this purpose. Though not enforceable in courts, the principles
are “fundamental in the governance of the country” and it is the duty of the
State to apply these principles while making laws.281 The essence of the
Directive Principles lies in Article 38 of the Constitution, which places an
obligation on the State to secure a social order for the promotion of the
279 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page 66
281 Article 37, The Constitution of India
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PART G
welfare of the people. Titled as Part IV of the Constitution, the Directive
Principles are symbolic of the welfare vision of the Constitution makers.
Article 38 of the Constitution provides that :
“(1) The State shall strive to promote the welfare of the people
by securing and protecting as effectively as it may a
social order in which justice, social economic and political,
shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the

inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations.”
Clauses (b), (c), (e) and (f) of Article 39 provide thus :
“39. The State shall, in particular, direct its policy towards

securing -
...
(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the
common good;
(c) that the operation of the economic system does not result
in the concentration of wealth and means of production to
the common detriment;
..
(e) that the health and strength of workers, men and women,
and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to

develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected
against exploitation and against moral and material
abandonment.”
Article 41 speaks of the right to work, to education, and to public assistance :
“41. The State shall, within the limits of its economic capacity
and development, make effective provision for securing the
right to work, to education and to public assistance in cases
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PART G
of unemployment, old age, sickness and disablement, and in

other cases of undeserved want.”
Article 43 contemplates a living wage and conditions of work which provide a
decent standard of life:
“43. The State shall endeavour to secure, by suitable

legislation or economic organisation or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living
wage, conditions of work ensuring a decent standard of life
and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to
promote cottage industries on an individual or co-operative
basis in rural areas.”
Article 47 casts a positive obligation upon the State to raise the level of
nutrition and the standard of living and to improve public health, as among its
primary duties. Reflecting a constitutional vision of socio-economic justice, the
values adopted in the Directive Principles are to be progressively realised in
the course of social and economic development.
162 In a recently published book titled “Supreme Court of India: The
Beginnings”, George H Gadbois, Jr. observes that the Indian Constitution,
“easily the lengthiest fundamental law in the world, probably ranks also as one
of the most eclectic ever produced”.282 Reflecting upon the constitutional
models from which the draftspersons of India’s Constitution drew sustenance,
Gadbois states:
“The Constitution makes provision for a parliamentary system

adapted from the British model, a federation patterned after
the Government of India Act of 1935 and the Canadian
282George H Gadbois, JR, Supreme Court of India: The Beginnings (Vikram Raghavan and Vasujith Ram eds.),
Oxford University Press (2017), at page 193
224
PART G
Constitution, a set of emergency powers similar to those set

forth in the Weimar Constitution, a lengthy list of fundamental
rights adapted from the American experience with a Bill of
Rights, a Supreme Court endowed with express powers of
judicial review for which the American Supreme Court served
as the model, and list of “Directive Principles of State Policy”
patterned after the Constitution of Eire.”283
Reflecting on the Directive Principles, Gadbois observes:
“Suffice to say that the directive principles have provided the

constitutional basis and justification for the Government’s
efforts to establish a welfare state, or, to use the designation
preferred by Indian leaders, a “socialist pattern of society”.284
The sanction behind the Directives, according to him “is political and not
juridical”. On the other hand, the fundamental rights are justiciable because
Article 13 provides that a law which takes them away or abridges them will be
void. The conflict as Gadbois sees it is this:
“the directive principles are a set of instructions to the

Government of the day to legislate into being a welfare state,
which means, of course, an emphasis on the social and
economic uplift of the community at large and a
corresponding subtraction from individual rights. It is the duty
of the Government to apply these principles in making laws.
In short, the Constitution confers upon the Supreme Court the
task of making the fundamental rights meaningful against
possible infringements by the legislatures and executives,
and makes it obligatory for the Government to bring about
changes in the social and economic life of the nation,
changes which were bound to affect adversely some private
rights.
It is conceivable at least, that both the Supreme Court and the
Government could have pursued their respective tasks
without conflict, but this did not happen. The legislatures,
purporting to be doing no more than carrying out the duties
prescribed in the directive principles, enacted legislation
which the Supreme Court found to be in conflict with some of
the fundamental rights.”285

225
PART G
This formulation by Gadbois formed part of a dissertation in April 1965. The
evolution of jurisprudence in India since then has altered the Constitutional
dialogue. Over time, the values enshrined in the Directive Principles have
been read into the guarantees of freedom in Part III. In incremental stages, the
realisation of economic freedom has been brought within the realm of
justiciability, at least as a measure of the reasonableness of legislative
programmes designed to achieve social welfare.
163 As our constitutional jurisprudence has evolved, the Directive Principles
have been recognised as being more than a mere statement of desirable
goals. By a process of constitutional interpretation, the values contained in
them have been adopted as standards of reasonableness to expand the
meaning and ambit of the fundamental rights guaranteed by Part III of the
Constitution.286 In doing so, judicial interpretation has attempted to imbue a
substantive constitutional content to the international obligations assumed by
India in the Universal Declaration of Human Rights and the International
Covenant on Economic and Social and Cultural Rights. Eradicating extreme
poverty and hunger is a significant facet of the Millennium Development Goals
of the United Nations. Social welfare legislation is but a step to achieve those
goals. The enactment of the National Food Security Act 2013 constituted a
milestone in legislative attempts to provide food security at the household
level. The Act discerns a targeted Public Distribution System for providing
food-grains to those below the poverty line. The rules contemplated in Section
286 Minerva Mills Ltd. v Union of India, (1980) 3 SCC 625
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12(2)(b), incorporate the application of Information and Communication
Technology tools to ensure transparency of governance and prevent a
diversion of benefits. Another important piece of legislation has been the
Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) Act
2005 which was enacted for the enhancement of livelihood and security of
rural households. The Act guarantees a hundred days of wage employment in
every financial year to at least one able-bodied member of every household in
rural areas in public works programmes designed to create public assets.
Both the National Food Security Act 2013 and the MGNREGA Act 2005 follow
a rights-based approach in dealing with endemic problems of poverty and
deprivation in rural areas. Leveraging Aadhaar for biometric identification of
beneficiaries, it has been argued by the respondents, is an intrinsic part of the
legislative effort to ensure that benefits in terms of food security and
employment guarantee are channelised to those for whom they are meant.
G.2 Development and freedom
164 Many scholars have delved into the substantive themes of the Indian
Constitution. Upendra Baxi has argued that the Indian Constitution has four
sovereign virtues: “rights, justice, development, and governance”287. Baxi
notes that they are “intertwined and interlocked with the rest and, in
contradictory combination/recombinations with both the constitutional and
287Upendra Baxi, “A known but an indifferent judge”: Situating Ronald Dworkin in contemporary Indian
jurisprudence, International Journal of Constitutional Law, (2003) at page 582
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social past and their future images”.288 Development is a leading aspect of our
constitutional vision. Development in the constitutional context is not only
economic development assessed in terms of conventional indicators such as
the growth of the gross domestic product or industrial output. The central
exercise of development in a constitutional sense is addressing the
“deprivation, destitution and oppression”289 that plague an individual’s life.
165 In a traditional sense, freedom and liberty mean an absence of
interference by the state into human affairs. Liberty assumes the character of
a shield. The autonomy of the individual is protected from encroachment by
the state. This formulation of political rights reflects the notion that the state
shall not be permitted to encroach upon a protected sphere reserved for
individual decisions and choices. What the state is prevented from doing is
couched in a negative sense. Civil and political rights operate as restraints on
state action. They postulate a restriction on the state. Isaiah Berlin formulates
the negative conception of liberty thus:
“I am … free to the degree to which no man or body of man

interferes with my activity. Political liberty is simply the area
within which a man can act unobstructed by others.”290
166 Individual freedom, in this conception, imposes a duty of restraint on the
state. Modern ideas of neo liberalism have funnelled this notion. Neo-
liberalism postulates that the increasing presence of the state is a threat to
288 Ibid
289 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page xii
290 Isaiah Berlin, Two Concepts of Liberty, available at
http://faculty.www.umb.edu/steven.levine/courses/Fall%202015/What%20is%20Freedom%20Writings/Berlin.p
df
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individual autonomy. A free market economy with minimum state control, in
this view, is regarded as integral to protecting individual rights and freedoms.
FA Hayek construes the content of liberty as meaning the absence of
obstacles. Resultantly, this notion of liberty regards the role of the state in a
narrow jurisprudential frame. Attempts by the state to pursue social justice or
to use its authority for redistribution of wealth would in this conception not be a
legitimate use of state power.291
167 The notion that liberty only consists of freedom from restraint does not
complete the universe of its discourse. Broader notions of liberty are cognizant
of the fact that individuals must be enabled to pursue their capacities to the
fullest degree. Social and economic discrimination poses real barriers to
access education, resources and the means to a dignified life. This approach
to understanding the content of freedom construes the ability to lead a
dignified existence as essential to the conception of liberty and freedom. The
integral relationship between removal of socio-economic inequality and
freedom has been eloquently set out by Amartya Sen in “Development as
Freedom”292:
“Development requires the removal of major sources of

unfreedom: poverty as well as tyranny, poor economic
opportunities as well as systematic social deprivation, neglect
of public facilities as well as intolerance or overactivity of
repressive states. Despite unprecedented increases in
overall opulence, the contemporary world denies elementary
freedoms to vast numbers – perhaps even the majority-of
people. Sometimes the lack of substantive freedoms relates
directly to economic poverty, which robs people of the
291 F A Hayek, The Constitution of Liberty, Routledge & Kegan Paul, (1960) at pages 11, 207-208
292 Amartya Sen, Development as Freedom, Oxford University Press (2000) at page 3-4
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freedom to satisfy hunger, or to achieve sufficient nutrition, or

to obtain remedies for treatable illnesses, or the opportunity to
be adequately clothed or sheltered, or to enjoy clean water or
sanitary facilities. In other cases, the unfreedom links closely
to the lack of public facilities and social care, such as the
absence of epidemiological programs, or of organized
arrangements for health care or educational facilities, or of
effective institutions for the maintenance of local peace and
order. In still other cases, the violation of freedom results
directly from a denial of political and civil liberties by
authoritarian regimes and from imposed restrictions on the
freedom to participate in the social, political and economic life
of the community.”
In Sen’s analysis, human development is influenced by economic
opportunities, political liberties, social powers, and the enabling conditions of
good health, basic education, and the encouragement and cultivation of
initiatives. Taking it further, Sen has recognized an important co-relation in
terms of the non-availability of basic economic conditions:
“Economic unfreedom, in the form of extreme poverty, can

make a person a helpless prey in the violation of other kinds
of freedom… Economic unfreedom can breed social
unfreedom, just as social or political unfreedom can also
foster economic unfreedom.”293
168 The notion of freedom as an agency has been developed by Sen as
part of the ‘capability theory’. The necessary consequence of focusing upon
major sources of unfreedom, in a social and economic perspective, is that the
removal of these restraints is essential to the realization of freedom. If true
freedom is to be achieved through the removal of conditions which cause
social and economic deprivation, the role of the state is not confined to an
absence of restraint. On the contrary, the state has a positive obligation to
293 Ibid, at page 8
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enhance individual capabilities. Martha Nussbaum294 argues that realising
freedom requires the state to discharge positive duties. Nussbaum expresses
a threshold level of capability below which true human functioning is not
available. Freedom is seen in terms of human development and is the process
by which individuals can rise above capability thresholds. In the realisation of
basic rights, the state is subject to positive duties to further the fulfilment of
freedom.
169 The broader conception of freedom and liberty which emerges from the
writings of Sen and Nussbaum has direct consequences upon how we view
civil and political rights and socio-economic rights. The distinction between
the two sets of rights becomes illusory once civil and political rights are
regarded as comprehending within their sweep a corresponding duty to take
such measures as would achieve true freedom. Henry Shue295 suggests that
rights give rise to corresponding duties. These duties include:
(i) a duty to respect;

(ii) a duty to protect; and
(iii) a duty to fulfil.
Duties of respect embody a restraint on affecting the rights of others. Duties
to protect mandate that the state must restrain others in the same manner as
it restrains itself. The state’s duty of non-interference extends to private
individuals. The duty to fulfil connotes aiding the deprived in the realisation of
294Martha Nussbaum, Women and Human Development, Cambridge University Press, (2000)
295Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, Princeton University Press, Second
Edition (1996)
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rights. This imposes a corresponding duty to create the conditions which will
facilitate the realisation of the right. The right which is protected for the
individual will also signify an expectation that the state must create institutions
enabling the exercise of facilitative measures or programmes of action, of an
affirmative nature. The state has affirmative obligations to fulfil in the
realisation of rights. These positive duties of the state are readily apparent in
the context of welfare entitlements when the state must adopt affirmative
steps to alleviate poverty and the major sources of economic and social non-
freedom. But the thesis of Nussbaum and Shue have an important role for the
state to discharge in ensuring the fulfilment of political rights as well. In a
highly networked and technology reliant world, individual liberty requires the
state to take positive steps to protect individual rights. Data protection and
individual privacy mandate that the state put in place a positive regime which
recognises, respects and protects the individual from predatory market places.
The state has a positive duty to create an autonomous regulatory framework
in which the individual has access to remedies both against state and non-
state actors, both of whom pose grave dangers of assault on the individual as
an autonomous entity. Failure to discharge that duty is a failure of the state to
respect, protect and fulfil rights.
Dr Ambedkar’s prophetic final address to the Constituent Assembly elaborates
that vision:
“On the social plane, we have in India a society based on the

principle of graded inequality with elevation for some and
degradation for others. On the economic plane, we have a
society in which there are some who have immense wealth as
against many who live in abject poverty. On the 26th of
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January 1950, we are going to enter into a life of

contradictions. In politics we will have equality and in social
and economic life we will have inequality...How long shall we
continue to live this life of contradictions? How long shall we
continue to deny equality in our social and economic life? If
we continue to deny it for long, we will do so only by putting
our political democracy in peril. We must remove this
contradiction at the earliest possible moment or else those
who suffer from inequality will blow up the structure of political
democracy which [this] Assembly has [so] laboriously built
up.”296
The pursuit of social welfare and security is a central aspect of development.
The State, in Ambedkar’s vision, would be the main instrumentality in the
debate on development, which has to revolve around the social, economic
and political spheres and would be guided by the values of the Constitution.
170 Social opportunities are the facilities and “arrangements that society
makes” for education, healthcare and nutrition, which “influence the
individual’s substantive freedom to live better”.297 Social security measures
include programmes which intend to promote the welfare of the population
through assistance measures guaranteeing access to sufficient resources.
The social security framework is not only important for individual
development, but also for effective participation in economic and political
activities. Social security programmes flow from ‘economic and social rights’−
also called as “welfare rights” 298

or second generation rights. These rights,
recognized for the first time under the Universal Declaration on Human
Rights, 1948 include a large list of freedoms and claims under its “protective
296 Constituent Assembly Debates (25 November 1949)

297 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 39
298 Amartya Sen, The Idea of Justice, Penguin (2009) at pages 379-380
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umbrella”. They include not only basic political rights, but the right to work, the
right to education, protection against unemployment and poverty, the right to
join trade unions and even the right to just and favourable remuneration. 299
Social security programmes as an instrument for the removal of global poverty
and other economic and social deprivations are at the centre stage in the
global discourse. Article 22 of the Universal Declaration of Human Rights
expressly recognises that every member of society is entitled to the right to
social security and to the realisation of economic, social and cultural rights.
Those rights are stated to be indispensable for dignity and to the free
development of personality. The realisation of these rights has to be facilitated
both through national efforts and international co-operation and in accordance
with the organisation and the resources of each state. Article 22 stipulates
that:
“Article 22
Everyone, as a member of society, has the right to social
security and is entitled to realization, through national effort
and international co-operation and in accordance with the
organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the
free development of his personality.”
In a similar vein, Article 23 comprehends a conglomeration of rights including
(i) the right to work; (ii) free choice of employment; (iii) just and favourable
conditions of work; (iv) protection against unemployment; (v) equal pay for
equal work without any discrimination; (vi) just and favourable remuneration
for work; and (vii) formation and membership of trade unions. Article 23
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construes these rights as a means of ensuring both for the individual and the
family, an “existence worthy of human dignity” supplemented if necessary “by
other means of social protection”.
India having adopted the UDHR, its principles can legitimately animate our
constitutional conversations. Both Articles 22 and 23 are significant in
recognising economic rights and entitlements in matters of work and social
security. Both the articles recognise the intrinsic relationship between human
dignity and the realisation of economic rights. Measures of social protection
are integral to the realisation of economic freedom and to fulfil the aspiration
for human dignity.
171 India adopted and ratified the Covenant on Civil and Political Rights as
well as the Covenant on Economic, Social and Cultural Rights. India acceded
to the Covenant on Economic, Social and Cultural Rights on 10 April 1979.
According to the Preamble, the states who are parties to the Covenant have
recognized that:
“the ideal of free human beings enjoying freedom from fear

and want can only be achieved if conditions are created
whereby everyone may enjoy his economic, social and
cultural rights, as well as his civil and political rights.”
Freedom is thus defined in terms of the absence of fear and want. Moreover,
freedom consists in the enjoyment of a conglomeration of rights: economic,
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social and cultural as well as civil and political rights. There is in other words
no dichotomy between the two sets of rights.
Article 11 of the Covenant on Economic, Social and Cultural Rights imposes
positive obligations on the covenanting states:
“Article 11.
1. The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing
and housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps
to ensure the realization of this right, recognizing to this
effect the essential importance of international
cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing

the fundamental right of everyone to be free from hunger,
shall take, individually and through international co-
operation, the measures, including specific programmes,
which are needed:
(a) To improve methods of production, conservation and

distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge of the
principles of nutrition and by developing or reforming
agrarian systems in such a way as to achieve the most
efficient development and utilization of natural resources;
(a) Taking into account the problems of both food-importing
the food-exporting countries, to ensure an equitable
distribution of world food supplies in relation to need.”
172 The Masstricht Guidelines on Violations of Economic, Social and
Cultural Rights (January 1997) stipulate that:
“It is now undisputed that all human rights are indivisible,

interdependent, interrelated and of equal importance for
human dignity. Therefore, states are as responsible for
violations of economic, social and cultural rights as they are
for violations of civil and political rights.”
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The Guidelines also stipulate that like civil and political rights, economic,
social and cultural rights impose three different types of obligations on states :
the obligation to respect, protect and fulfil. The guidelines recognize that
violations of economic, social and cultural rights can occur through acts of
commission and omission on the part of states. The omission or failure of
states to take measures emanating from their legal obligations may result in
such violations. Among them is the failure to enforce legislation or to put into
effect policies designed to implement the provisions of the Covenant. In
similar terms, the Limburg Principles on the Implementation of the
International Covenant on Economic, Social and Cultural Rights cast
affirmative duties on states to take immediate steps towards realizing the
rights contained in the Covenant. Clauses 16, 21 and 27 of the guidelines are
thus:
“16. All States parties have an obligation to begin

immediately to take steps towards full realization of the
rights contained in the Covenant.
21. The obligation “to achieve progressively the full
realization of the rights” requires States parties to move
as expeditiously as possible towards the realization of
the rights. Under no circumstances shall this be
interpreted as implying for States the right to defer
indefinitely efforts to ensure full realization. On the
contrary all States parties have the obligation to begin
immediately to take steps to fulfil their obligations under
the Covenant.
27. In determining whether adequate measures have been
taken for the realization of the rights recognized in the
Covenant attention shall be paid to equitable and
effective use of and access to the available resources.”
The office of the UN High Commissioner for Human Rights notified General
Comment No. 3, which was adopted at the fifth session of the Committee on
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Economic, Social and Cultural Rights on 14 December 1990. The Comment
states:
“…while the full realization of the relevant rights may be

achieved progressively, steps towards that goal must be
taken within a reasonably short time after the Covenant’s
entry into force for the States concerned. Such steps should
be deliberate, concrete and targeted as clearly as possible
towards meeting the obligations recognized in the Covenant.”
Similarly, General Comment No. 12 on the right to adequate food was
adopted at the twentieth session of the Committee on Economic, Social and
Cultural Rights on 12 May 1999. It states :
“The Committee observes that while the problems of hunger

and malnutrition are often particularly acute in developing
countries, malnutrition, under-nutrition and other problems
which relate to the right to adequate food and the right to
freedom from hunger also exist in some of the most
economically developed countries, Fundamentally, the roots
of the problem of hunger and malnutrition are not lack of food
but lack of access to available food, inter alia because of
poverty, by large segments of the world's population.”
The emphasis on the lack of access to available food is significant to the
present discourse. It indicates that access to food requires institutional
mechanisms to ensure that the available resources reach the beneficiaries for
whom they are intended.
173 Section 2(1)(f) of the Protection of Human Rights Act 1993 specifically
adverts to the Covenant on Economic, Social and Cultural Rights:
“2.(1)(f) “International Covenants” means the International

Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights adopted
by the General Assembly of the United Nations on 16th
December, 1996 and such other Covenant or Convention
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adopted by the General Assembly of the United Nations as

the Central Government may, by notification, specify;”
Under Section 12(f), the National Human Rights Commission has been
entrusted with the function of studying treaties and other international
instruments of human rights and to make recommendations for their effective
implementation. Parliament has statutorily incorporated India’s obligations at
international law under the above covenants as a part of the national effort to
realise fundamental human freedoms. Achieving economic freedom is integral
to that mission. In his classic work “The Idea of Justice”, Amartya Sen has
observed in this regard:
“The inclusion of second-generation rights makes it possible

to integrate ethical issues underlying general ideas of global
development with the demands of deliberative democracy,
both of which connect with human rights and quite often with
an understanding of the importance of advancing human
capabilities.”300
174 Social security thus acts as an underpinning link with development.
There is also a two-way relationship between development and social security
(expansion of human capability). Dreze and Sen have dealt with this
relationship in their following observation:
“Growth generates resources with which public and private

efforts can be systematically mobilized to expand education,
health care, nutrition, social facilities, and other essentials of
fuller and freer human life for all. And the expansion of human
capability, in turn, allows a faster expansion of resources and
production, on which economic growth ultimately depends…
Well-functioning public services, especially (but not only) in
fields such as education and health, are also critical in
fostering participatory growth as well as in ensuring that
300 Amartya Sen, The Idea of Justice, Penguin (2009) at page 381
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growth leads to rapid improvements in people’s living

conditions.”301
The authors have further observed that apart from education and healthcare,
India faces larger issues of accountability in the “public sector as a whole”. 302
The lack of progress in public services acts as a huge barrier to improve the
quality of life of people.303 It has been observed:
“The relative weakness of Indian social policies on school

education, basic healthcare, child nutrition, essential land
reform and gender equity reflects deficiencies of politically
engaged public reasoning and social pressure, not just
inadequacies in the official thinking of the government.”304
The future of Indian democracy therefore depends on how it engages itself
with the issues of accountability in transfer of basic human facilities to the
common man.
175 The State has a legitimate aim to ensure that its citizens receive basic
human facilities. In order to witness development, the huge amount of
expenditure that the State incurs in providing subsidies and benefits to the
common citizens, must be accompanied by accountability and transparency.
Legislative and institutional changes are often capable of creating an
atmosphere of transparency and accountability. The most visible example of a
legislative enactment which brought institutional changes is the Right to
Information Act, 2005. Commentators have often highlighted the importance
301 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at pages x and xi
302 Ibid, at page xi
303 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 33
304 Amartya Sen, The Idea of Justice, Penguin (2009) at page 349
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of this legislation by deliberating upon how it has been successful at “curbing
corruption and restoring accountability in public life”305. According to the State,
though the Aadhaar programme is not in itself a social security programme,
the institutional framework established by the Act, seeks to act, in a way, as
an extension of social security programmes. The State has a legitimate
concern to check that the welfare benefits which it marks for those, who are
entitled, reach them without diversion. The Aadhaar programme, it is argued,
acts as an instrument for the realization of the benefits arising out of the social
security programmes. The Aadhaar programme, it was further contended,
fulfils the State’s concern that its resources are utilised fully for human
development.
It has been contended by the Respondents that since the establishment of the
UIDAI in 2009, its basic mandate is to provide a unique identity number to
residents. The number would subserve two purposes. First, it would serve as
a proof of identity. Second, it would be used for the purpose of identifying
beneficiaries for the transfer of social welfare benefits, provided by the state.
The rationale for establishing a method of identification is to ensure that the
benefits provided by social welfare programmes formulated by the State reach
the beneficiaries for whom they are intended. As a policy intervention, a
unique measure of identification is intended, it has been argued, to secure
financial inclusion. A significant hurdle in the success of social welfare
programmes is that benefits do not reach the targeted population. The reason
305 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 100
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for this may have something to do intrinsically with the condition of the
individuals as much as with their larger socio-economic circumstances.
Migrant labour and labour in the unorganised sector lacks fixity of abode. The
nature of their work renders their lives peripatetic. Nomadic tribes, particularly
in inaccessible areas, may not have fixed homes. In many cases, traditional
occupations require individuals to move from place to place, dependent on
seasonal changes. Then again, groups of citizens including women, children
and the differently abled may face significant difficulties in accessing benefits
under publicly designed social welfare programmes as a result of factors such
as gender, age and disability.
176 Unequal access to welfare benefits provided by the State becomes a
significant source of deprivation resulting in a denial of the means to sustain
life and livelihood. Before the adoption of Aadhaar based-identity, there were
multiple platforms for identification of residents. They created a situation
where those with no identity had no access to the means of sustaining a
dignified life. Equally significant, as a policy intervention, was the issue of
capture. While on the one hand, large swathes of the population had no
access to welfare assistance, benefits could be captured by persons not
entitled to them either by the assertion of fake or multiple identities. Setting up
a fake identity enables an individual to pass off as another and to secure a
benefit to which that individual is not entitled. Fake identities compound the
problem of capture by allowing individuals to receive multiple benefits through
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shell identities. Policy makers were confronted with the serious problems
posed by fake and multiple identities since they imposed a burden on the
exchequer while at the same time diluting the efficacy of state designed social
welfare measures. The burden on the exchequer is illustrated by situations
where persons who are not entitled to benefits secure them in the guise of
being persons entitled to them. When imposters secure benefits which are
not meant for them, they deprive in the process, persons who are genuinely
entitled to benefits. The class of beneficiaries of social welfare programmes is,
so to speak, adulterated by the capture of benefits by those not entitled to
them. This raises serious concerns of the deprivation of human rights. The
capture of benefits has the consequence of depriving those to whom these
benefits should legitimately flow, of the measures designed by the state to
protect its populace from human want and need. The resources deployed by
the state are from its public revenues. When designing a unique measure of
identification, the state must be guided by the necessity of ensuring financial
inclusion and of protecting against financial exclusion. Every citizen who is
eligible for social welfare benefits should obtain them. No person who is
entitled should be excluded. Individuals who do not qualify for social welfare
benefits should not capture them by passing off as individuals entitled.
Enforcing and implementing a robust platform for identification of beneficiaries
must ensure that social welfare benefits reach the hands of those who fulfil the
conditions of eligibility and are not captured by rent-seeking behaviour of
those to whom social welfare benefits are not designed. This constitutes a
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legitimate object of state policy. Reaching out to the targeted population is a
valid constitutional purpose. Social welfare measures are an intrinsic part of
state policy designed to facilitate dignified conditions of existence to the
marginalised, especially those who live below the poverty line. Identification
of beneficiaries is crucial to the fulfilment of social welfare programmes.
177 These concerns form the basis of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, Benefits and Services) Act, 2016. As its
Statement of Objects and Reasons explains:
“The correct identification of targeted beneficiaries for delivery

of various subsides, benefits, services, grants, wages and
other social benefits schemes which are funded from the
Consolidated Fund of India has become a challenge for the
Government. The failure to establish identity of an individual
has proved to be a major hindrance for successful
implementation of these programmes. This has been a grave
concern for certain categories of persons, such as women,
children, senior citizens, persons with disabilities, migrant
unskilled and unorganised workers, and nomadic tribes. In
the absence of a credible system to authenticate identity of
beneficiaries, it is difficult to ensure that the subsidies,
benefits and services reach to intended beneficiaries.”
The Statement of Objects and Reasons indicates that the enactment is
designed to ensure “the effective, secure and accurate delivery of benefits,
subsidies and services from the Consolidated Fund of India to targeted
beneficiaries”. The architecture of the law contemplates regulating the
following aspects:
“(a) issue of Aadhaar numbers to individuals on providing ..

demographic and biometric information to the Unique
Identification Authority of India;
(b) requiring, Aadhaar numbers for identifying an
individual for delivery of benefits, subsidies, and
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services (where) the expenditure is incurred from or

the receipt therefrom forms part of the Consolidated
Fund of India;
(c) authentication of the Aadhaar number of an Aadhaar
number holder in relation to his demographic and
biometric information;
(d) establishment of the Unique Identification Authority of
India… to perform functions in pursuance of the
objectives above;
(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in
such manner as may be specified by regulations;
(f) measures pertaining to security, privacy and
confidentiality of information in possession or control
of the Authority including information stored in the
Central Identities Data Repository; and
(g) offences and penalties for contravention of relevant
statutory provisions.”
The Preamble to the enactment indicates that Parliament designed the
legislation as an instrument of good governance, to secure an “efficient,
transparent and targeted delivery of subsidies, benefits and services” for
which the expenditure is incurred from the Consolidated Fund to resident
individuals.
178 The Aadhaar platform is not a social welfare benefit in itself.
Essentially, what it seeks to achieve is to provide a unique identity to every
resident. This identity, in the form of an Aadhaar number, is obtained upon the
submission of demographic and biometric information in the course of
enrolment. The legislative design envisages that the identity of the individual is
verified through the process of authentication by which the biometric data
stored in the central repository is matched with the biometric information
submitted for authentication. Aadhaar is a platform for verification of identity
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based principally on biometric information. In facilitating the process of
establishing the identity of the individual who seeks social welfare benefits
envisaged in Section 7, Aadhaar has an instrumental role. It is instrumental in
the sense that as a measure of state policy, it seeks to bring about financial
inclusion by providing a means of identification to every segment of the
population including those who may not have been within the coverage of
traditional markers of identity. As an instrument for verifying identity, Aadhaar
seeks to ensure that social welfare benefits are obtained by persons eligible to
do so and are not captured by the ineligible. Relying on an asserted reliability
of biometric markers, the Aadhaar platform attempts to eliminate, or at least to
curb rent-seeking behaviour.
The rationale underlying Section 7 is the targeted delivery of services, benefits
and subsidies which are funded from the Consolidated Fund of India. In the
seven decades since Independence, the Union Government has put into place
social welfare measures including the public distribution system, free
education, scholarships, mid-day meals and LPG subsidies to ameliorate the
conditions of existence of the poor and marginalised. There is a state interest
in ensuring that the welfare benefits which the state provides reach those for
whom they are intended.
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G.3 Identity and Identification
179 Identity is inseparable from the human personality. An identity is a
statement of who an individual is. Our identities define who we are. They
express what we would wish the world to know us as. The human personality
is, at a certain level, all about identity, for it is through the assertion of identity
that each individual seeks to preserve the core of his or her humanity. An
identity is the persona which an individual puts forth in a multitude of
relationships. The significance of our identity lies in our ability to express the
core of our beings. When the Constitution protects our right to be and to be
what we are, it creates a space where the individual is immune from
interference. By recognizing our liberty as autonomous persons, the
Constitution recognizes our ability to preserve and shape our identities in
interactions with others.
Identity may be, but is not always based upon immutable characteristics that
are defined at birth. What is immutable may not be or, at any rate, is not
generally understood as being capable of change. But even here, the
immutability of our features is relative to our own existence and is capable of
being shaped by the social milieu in which human beings lead their lives.
Features about our biological being which are defined at birth are, after all, not
as constraining upon our identities as is often assumed to be the case. That
is because these immutable features are also constantly engaged with our
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social and cultural environment. They shape and are influenced by that
environment.
180 There is a distinction between identity and identification. Identification is
a matter of proof- of establishing that a person is actually, the individual who
claims a right or entitlement. In their daily interactions, individuals have to
distinguish themselves from others, whether it be in the course of
employment, travel, civil union, location, community perspectives, revenue
obligations or access to benefits. Identification is a proof of identity or
evidence of identity. Identification is mandatory in numerous activities of day
to day life: a passport is necessary for international travel, a voter ID is
required for exercising electoral rights, a driving license is necessary to ply a
vehicle and an arms license is needed to possess a fire arm. The holder of a
policy of medical insurance will have a card depicting his or her identity which
is a proof of holding a valid policy for availing medical benefits.
181 Under international law, recognition of identity is an obligation of a
nation state. Article 6 of the Universal Declaration of Human Rights provides
that “everyone has the right to recognition everywhere as a person before the
law”. Article 16 of the International Covenant on Civil and Political Rights is in
similar terms. Article 8 of the UN Convention on the Rights of the Child
mandates that State parties undertake to respect the right of the child to
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preserve his or her identity, including nationality, name and family relations as
recognized by law without unlawful interference. The importance of identity is
recognized by Article 3 of the American Convention on Human Rights. The
Inter-American Juridical Committee (IAJC) of the Organisation of American
States (OAS) has in fact provided that:
“12. The right to identity is consubstantial to the attributes and

human dignity. Consequently it is an enforceable basic
human right erga omnes as an expression of a collective
interest of the overall international community that does not
admit derogation or suspension in cases provided in the
American Convention on Human Rights.
15. The Committee considers that the right to identity is,

among its most relevant implications and scope, to constitute
an autonomous right that is based on the regulations of
international law and those that derive from the actual cultural
elements considered in the domestic legal systems of the
States, in order therefore to satisfy the specificity of the
individual, with his or her rights that are unique, singular and
identifiable.”306
182 In National Legal Services Authority v Union of India307, this Court
held that gender identity is fundamental to and an essential component for the
enjoyment of civil rights by the transgender community. Self-determination of
identity has been held to be an essential facet of Article 21. In the view of this
Court:
“74. The recognition of one's gender identity lies at the heart

of the fundamental right to dignity. Gender, as already
indicated, constitutes the core of one's sense of being as well
306 Opinion on the Right to Identity, 2007, available at

http://www.oas.org/en/sla/iajc/docs/ijc_current_agenda_Right_to_Identity.pdf
307 (2014) 5 SCC 438
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as an integral part of a person's identity. Legal recognition of

gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution.
75. Article 21, as already indicated, guarantees the protection
of "personal autonomy" of an individual. In Anuj Garg v. Hotel
Association of India33 (SCC p. 15, paras 34-35), this Court
held that personal autonomy includes both the negative right
of not to be subject to interference by others and the positive
right of individuals to make decisions about their life, to
express themselves and to choose which activities to take
part in. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the
realm of personal liberty guaranteed under Article 21 of the
Constitution of India.”
Identity assumes a complex character in a networked society. Shah adopts
the following definition of a networked society308:
“a network society is a society where the key social structures

and activities are organized around electronically processed
information networks. So it’s not just about networks or social
networks, because social networks have been very old forms
of social organization. It’s about social networks which
process and manage information and are using micro-
electronic based technologies”309.
183 In a networked society, an individual is a data subject and a quantified
self. The individual is a data subject since his or her data is stored in a
database. Shah notes that there is an ambivalence about whether the data
subject is the individual whose identity becomes the basis of validating the
data or whether the data subject is the identity of the individual as it gets
constructed through data sets. The individual becomes a quantified self
where data which is distributed across various systems is “curated” to form a
comprehensive profile of an individual.
308Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal
Review, available at http://www.sociolegalreview.com/wp-content/uploads/2015/12/Identity-and-Identification-
the-Individual-in-the-Time-of-Networked-Governance.pdf
309Manuel Castells, Conversation with Manuel Castells, Globetrotter, available at
http://globetrotter.berkeley.edu/people/Castells/castells-con4.html
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184 The Aadhaar project was intended to allow a unique identity to enable
individuals to “navigate through disconnected and often hostile governmental
database systems”. Shah notes that ever since 2009, the terms ‘identity’ and
‘identification’ were used as part of the Aadhaar project inter-changeably,
introducing “a curious conflation and interoperability”310 between these
notions. ‘Identification’ is the ability of a network device to identify an individual
by scanning unique data sets, from personal information to biometric details
such as finger print and iris scan, which would be stored in a massive
centralized database. UIDAI posited that identification took place through its
yes/no mechanism by which the centralised database would provide a
response to whether the biometric details submitted for authentication match
those in the repository. Technologically, at this level, Aadhaar was to be a
means of identification. Yet at another level, the Aadhaar project also
offered itself as providing a documentary identity to persons who may not
have possessed one at all. Shah, in the course of his article, has this to state
about the conflation between identity and identification in the Aadhaar project:
“This ambiguity and conflation cannot merely be attributed to

a semantic slip of the keyboard, but to a much larger
phenomenon which points to the construction of a new notion
of the individual, through big data streams and measures of
self-quantification. It offers us a techno-social framework
where the machine function of identification is wedded to the
human expression of identity, and thus offers an inroad into
looking at what happens when our identities are mediated,
mitigated, facilitated, and contained by the ways in which the
networked technologies of authentication and verification
operate. It is a crucial shift where the identity of a person is
ontologically defined through the logics and logistics of
310Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal
Review, available at http://www.sociolegalreview.com/wp-content/uploads/2015/12/Identity-and-Identification-
the-Individual-in-the-Time-of-Networked-Governance.pdf
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networked computation that form the Aadhaar project. This is

why the Aadhaar enrolment system, for instance, does not
check the veracity of the information that the individual gives
it. For the enrolment, the individual needs no proof to
substantiate or validate the information provided. The name,
the address, the description, etc. are empty signifiers and it is
possible for anybody to assume any identity as long as they
give the inviolable data of biometric recognition. Thus, the
identity of the person being enrolled and registered is almost
insignificant and has value only in how it would now always
identify the individual through the credentials or information
provided. The Aadhaar network governance system is
concerned only with the identifiers rather than the narrative,
iterative, forms of identity and expression, and this is where
we begin examining the ways in which identity is shaped,
understood, and used to construct the notion of an individual
in computation systems.”311
185 Identity includes the right to determine the forms through which identity
is expressed and the right not to be identified. That concept is now “flipped” so
that identification through identifiers becomes the only form of identity in the
time of database governance. This involves a radical transformation in the
position of the individual.
The submission which has been urged on behalf of the petitioners is that an
individual entitled to the protection of the freedoms and liberties guaranteed by
Part III of the Constitution must have the ability to assert a choice of the
means of identification for proving identity. Requiring an individual to prove
identity on the basis of one mode alone will, it is submitted, violate the right of
self-determination and free choice.
311 Ibid
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186 The Aadhaar (Enrolment and Update) Regulations, 2016 stipulate in
Regulation 4, the demographic information which is required for enrolment.
Regulation 4 is in the following terms:
“4. Demographic information required for enrolment.-
(1) The following demographic information shall be collected

from all individuals undergoing enrolment (other than children
below five years of age):
(i) Name;
(ii) Date of Birth;
(iii) Gender;
(iv) Residential Address.
(2) The following demographic information may also

additionally be collected during enrolment, at the option of the
individual undergoing enrolment:
(i) Mobile number;
(ii) Email address.
(3) In case of Introducer-based enrolment, the following

additional information shall be collected:
(i) Introducer name;
(ii) Introducer’s Aadhaar number.
(4) In case of Head of Family based enrolment, the following

additional information shall be collected:
(i) Name of Head of Family;
(ii) Relationship;
(iii) Head of Family’s Aadhaar number;
(iv) One modality of biometric information of the Head of

Family.
(5) The standards of the above demographic information shall

be as may be specified by the Authority for this purpose.
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(6) The demographic information shall not include race,

religion, caste, tribe, ethnicity, language, record of
entitlement, income or medical history of the resident.”
Regulation 9 postulates that at the time of enrolment, the enrolling agency
shall inform the individual who is undergoing enrolment of (i) the manner in
which the information shall be used; (ii) the nature of recipients with whom the
information is intended to be shared during authentication; and (iii) the
existence of a right to access information. Under Regulation 10, a resident
seeking enrolment has to submit an application for enrolment together with
copies of supporting documents for proof of identity, address and date of birth.
Schedule II indicates a list of supporting documents which are accepted for
verification of identity, address and date of birth. If a resident does not
possess the supporting documents, enrolment is contemplated through an
introducer or a Head of Family. Schedule II contains as many as eighteen
documents which are accepted towards proof of identity and thirty three
documents as proof of address. The Aadhaar Act, it has been contended,
allows the resident to identify herself through any of the stipulated documents
for the purpose of availing an Aadhaar number. The Aadhaar number can be
availed of to secure a subsidy, benefit or service under Section 7, the
expenditure of which is drawn from the Consolidated Fund of India.
Article 266 of the Constitution provides as follows:
“266. Consolidated Funds and public accounts of India and of

the States
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(1) Subject to the provisions of Article 267 and to the

provisions of this Chapter with respect to the assignment of
the whole or part of the net proceeds of certain taxes and
duties to States, all revenues received by the Government of
India, all loans raised by that Government by the issue of
treasury bills, loans or ways and means advances and all
moneys received by that Government in repayment of loans
shall form one consolidated fund to be entitled the
“Consolidated Fund of India”, and all revenues received by
the Government of a State, all loans raised by that
Government by the issue of treasury bills, loans or ways and
means advances and all moneys received by that
Government in repayment of loans shall form one
consolidated fund to be entitled “the Consolidated Fund of the
State”.
(2) All other public moneys received by or on behalf of the
Government of India or the Government of a State shall be
credited to the public account of India or the public account of
the State, as the case may be
(3) No moneys out of the Consolidated Fund of India or the
Consolidated Fund of a State shall be appropriated except in
accordance with law and for the purposes and in the manner
provided in this Constitution.”
187 The Union Government is the custodian of the Consolidated Fund under
Article 266. All revenues received by the government form part of the
Consolidated Fund. No part of its proceeds can be “appropriated except in
accordance with law and for the purpose and in the manner” which is provided
by the Constitution. As the custodian of the fund, the Union Government, it
has been submitted by the respondents, had the Aadhaar Act enacted through
Parliament. The Act places a restriction on the right of the individual to utilize
any other identification save and except for the Aadhaar number, for the
purpose of availing of a subsidy, benefit or service that involves an
expenditure from the Consolidated Fund. The purpose of making an Aadhaar
number mandatory for the delivery of benefits, services and subsidies funded
from the Consolidated Fund is to confirm the identity of the individual to whom
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PART G
the benefit is being transferred. This was in order to ensure that the benefits
under social welfare programmes funded by the Consolidated Fund reach the
hands of targeted beneficiaries. The Union Government which expends huge
sums of money in its welfare schemes was apprised of the fact that money
which was meant for the beneficiaries was being siphoned off through ghosts
and duplicates. As a result, genuine beneficiaries would be deprived of their
basic rights. Cornering of benefits by the creation of bogus identities seriously
impacted upon social welfare measures adopted by the Union Government as
an instrument of fostering social and economic development. It was to deal
with this evil that the Aadhaar project assumed a statutory character in 2016.
Through the provisions of the law, Parliament intended that Aadhaar should
become an effective instrument of de-duplication. This is premised on the
view of the legislating body that the use of biometrics would render it difficult, if
not impossible, to obtain fake identities. Aadhaar, in other words, was
adopted as a matter of legislative policy to curb the evil of shell companies
and ghost identities. Where the State expends large sums on social welfare
projects, it has a legitimate interest in ensuring that the resources which it
deploys reach the hands of those for whom they are meant.
Thus, there are two important facets of the Aadhaar regime which must be
noticed. The first is that under Section 3, it is a voluntary option of the
individual to choose Aadhaar as a form of identification. However, if the
individual seeks a subsidy, benefit or service for which the expenditure is
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incurred from the Consolidated Fund of India, Aadhaar becomes a mandatory
requirement. The second important feature is the requirement of informed
consent when the individual parts with identity information. The mandate of
Section 7 must be understood from the perspective of the obligation imposed
on the State to ensure effective and efficient utilization of public resources.
Article 266 reinforces that mandate in its stipulation that all monies out of the
Consolidated Fund of India can only be appropriated in accordance with law,
for the purpose of and in the manner provided by the Constitution. The State
is a trustee of public resources. The adoption of Aadhaar is in fulfilment of the
doctrine of public trust. The state is under a bounden obligation to ensure that
its revenues which are placed in the Consolidated Fund are appropriated in
accordance with law and are not diverted for extraneous purposes. These
principles have been elucidated in the decisions of this Court in Natural
Resources Allocation, In Re, Special Reference No.1 of 2012312, Centre
for Public Interest Litigation v Union of India313, Reliance Telecom
Limited v Union of India314.
The mandate of Section 7 is founded on a legitimate state interest. The state
has a vital interest in ensuring that public revenues are duly accounted, that
the Consolidated Fund is utilized for purposes authorized by law; that funds
for development reach genuine beneficiaries and that scarce public resources
312 (2012) 10 SCC 1

313 (2012) 3 SCC 1
314 (2017) 4 SCC 269
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PART H
meant for those at the foot of the socio-economic ladder are not mis-utilized
by rent-seeking behavior.
H Proportionality
188 The petitioners have challenged the constitutional validity of the
Aadhaar project and the Aadhaar Act on various grounds including the
violation of the fundamental rights of citizens including the right to privacy and
dignity. The respondents, in defense, have argued that Aadhaar is an enabler
of identity and empowers citizens to realise various facets of the right to life,
such as the right to food and livelihood.
189 The learned Attorney General has argued that the use and
authentication of the Aadhaar number is a necessary and proportionate
measure to ensure targeted delivery of financial benefits and services and to
prevent ‘leakages’. He submits that the Aadhaar scheme satisfies the test of
proportionality: it has a rational nexus with the goal that it seeks to achieve,
and since welfare benefits enhance the right to live with dignity, the latter will
prevail over the right to privacy. Mr Rakesh Dwivedi, learned Senior Counsel
has argued that the “least intrusive test” is not accepted in Indian
jurisprudence. He submits that even if the test were to be accepted, the
exercise of determining whether a measure is the least intrusive is a technical
issue for which the Court lacks the requisite expertise. He states that this
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PART H
exercise “cannot be undertaken in the courts with the assistance of lawyers
who equally have no expertise in the field” and that “such an exercise involves
research, study by the experts and courts cannot substitute the same”. Mr
Gopal Sankaranarayanan, learned Counsel, submits that the means adopted
“at the moment” are no more than is necessary for ensuring that the “avowed
objects” are served, and that they balance individual interests (fundamental
rights) with societal interests (directive principles). He further submits that the
fact there are various limitations in place ensure that “some balance” is
achieved between the breach of privacy and the object sought to be achieved.
This Court must now perform the delicate task of ‘balancing’ these competing
interests by subjecting the Aadhaar Act to the proportionality test.
H.I Harmonising conflicting rights
190 In the 2003 edition of his celebrated work, Granville Austin recounts the
words of Prime Minister Morarji Desai that freedom and bread are not
incompatible, but further adds, ‘Neither could they easily be sought
together’.315 As mentioned earlier, Granville Austin had insightfully spoken
about how the strands of the Constitution of unity-integrity, democracy and
social revolution could come in conflict with one another creating challenges
for those who work with the Constitution.316 Some of the questions inherent in
315 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press (2003), at page 652
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PART H
the Constitution according to him are “Democracy for whom? Justice for
whom? What is Justice? What are the appropriate means of employing the
Constitution’s means’ among citizens, between them and their
government?”317 It was due to the foresight of the framers of the Constitution
that they insisted that neither the strand of social revolution nor the strand of
democracy was to be pursued at the expense of the other.318
The ostensible conflict between bread and freedom has also been explored in
the works of Professor Upendra Baxi. In a seminal essay on human rights in
1984 which he calls the “the great gift of classical and contemporary human
thought to culture and civilization”319, he discusses the widening sphere of
human rights thought and action to new arenas and constituencies as “New
rights arise from the womb of the old.”320 He draws on the distinction between
basic human needs and human rights and argues that the constant struggle
between these two forces is the essence of the difference between the right to
be human approach and the human rights approach.321 It is rightly pointed out
that a discussion on human rights will always constitute an inherent aspect of
the larger debate of development. He opines that whatever meaning maybe
ascribed to the term “development”, it must ensure that people will not be
deprived of the right to remain human:
317 Ibid
318 Ibid
319Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies, India International Centre
Quarterly, Vol. 13, No. 3/4, Pg.185, (December 1986)

321 Ibid
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PART H
“Whatever it may be made to mean, “development” must at

least mean this: people will be given the right to be and
remain human. Total and continuing destitution and
impoverishment exposes people to a loss of their humanity. In
no society that takes human rights seriously should there be
allowed a state of affairs where human beings become sub-
human—that is, when they perforce have to surrender even
those sonorously recited "inalienable" rights of man… The
expression "human rights" presupposes a level at which
biological entities are bestowed with the dignity of being
called human. The bearers of human rights must have an
implicit right to be and remain human, allowing them some
autonomy of choice in planning survival.”322
Thus, the broader matrix of human rights includes within it the inalienable and
fundamental right to always ‘be and remain human’. Professor Upendra Baxi
notes that this broader debate between human rights and the ‘right to be
human’ is reflective of the bread vs freedom conflict. It is noted that
historically, freedom might have been chosen over bread due to the vast
enumeration of liberal rights it includes, despite the acute awareness that
without bread, freedom of speech and assembly, of association, of
conscience and religion, of political participation, symbolic adult suffrage may
all be meaningless.323 At the same time, Baxi points out the danger in
choosing bread at the cost of freedom, given that historically in the absence of
freedom, human beings have been subject to the most egregious indignities:
“The provision of "bread" may justify indefinite

postponement of the provision of any kind of
"freedom". In the absence of such freedom, even the
promised "bread" may not be realized by the masses;
indeed, they even lose, in the process, their power to
protest at the indignity of regime sponsored starvation.
This, indeed, is a possibility which has materialized
more often than not.”324

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Baxi concludes that the choice between bread and freedom is a false
antithesis. The challenge is not a choice in the abstract between bread and
freedom but rather the balancing of the two:325
“But the issues are not really "bread" and/or "freedom" in the
abstract, but rather who has how much of each, for how long,
at what cost to others, and why. Some people have both
"bread" and "freedom"; others have "freedom" but little
"bread" or none at all; yet others have half a loaf (which is
better than none, surely!) with or without freedom; and still
others have a precarious mix where "bread" is assured if
certain (not all) freedoms are bartered.”326
It is the foremost duty of the State to work towards achieving and maintaining
a fine balance, taking into account these myriad considerations. The State
must always be guided by the knowledge and sense of duty that in a true
democracy, the citizens cannot be made to choose between rights and needs,
as they are equally entitled to both. As the sentinel of justice and protector of
fundamental rights, it is the responsibility of this Court to act as a check and
ensure that government action or inaction does not endanger or threaten to
disturb the balance that the Constitution seeks to achieve. It is imperative to
remember that both ‘bread’ and ‘freedom’ play a vital role in the guaranteeing
to our citizens the gamut of human rights and freedoms that make human
existence meaningful.
191 While exercising judicial review, courts are often confronted with
situations involving conflicts between rights, tensions between individuals
arising from the assertion of rights and discord arising out of the assertion of
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PART H
the same right by two or more individuals. Conflicts between rights arise when
the assertion of a fundamental human right by an individual impacts upon the
exercise of distinct freedoms by others. The freedom of one individual to
speak and to express may affect the dignity of another. A person may be
aggrieved when the free exercise of the right to speak by someone impinges
upon his or her reputation, which is integral to the right to life under Article 21.
A conflict will, in such a situation, arise between a right which is asserted
under Article 19(1)(a) by one citizen and the sense of injury of another who
claims protection of the right to dignity under Article 21. Conflicts also arise
when the exercise of rights is perceived to impact upon the collective identity
of another group of persons. Conflicts may arise when an activity or conduct
of an individual, in pursuit of a freedom recognised by the Constitution,
impinges upon the protection afforded to another individual under the rubric of
the same human right. Such a situation involves a conflict arising from a
freedom which is relatable to the same constitutional guarantee. Privacy is an
assertion of the right to life under Article 21. The right to a dignified existence
is also protected by the same Article. A conflict within Article 21 may involve a
situation when two freedoms are asserted as political rights. A conflict may
also envisage a situation where an assertion of a political right under the
umbrella of the right to life stands in conflict with the assertion of an economic
right which is also comprehended by the protection of life under the
Constitution.
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PART H
Such conflicts require the court to embark on a process of judicial
interpretation. The task is to achieve a sense of balance. An ideal situation
would be one which would preserve the core of the right for both sets of
citizens whose entitlements to freedom appear to be in conflict. Realistically,
drawing balances is not a simple task. Balances involve sacrifices and the
foregoing of entitlements. In making those decisions, a certain degree of
value judgment is inevitable. The balance which the court draws may be open
to criticism in regard to its value judgment on the relative importance ascribed
to the conflicting rights in judicial decision making. In making those fine
balances, the court can pursue an objective formulation by relying upon those
values which the Constitution puts forth as part of its endeavour for a just
society. Our Constitution has in Part III recognised the importance of political
freedom. In Part IV, the Constitution has recognised our social histories of
discrimination and prejudice which have led to poverty, deprivation and the
absence of a dignified existence to major segments of society. Holding Part III
in balance with Part IV is integral to the vision of social and economic justice
which the Constitution has sought to achieve consistent with political
democracy. Difficult as this area is, a balancing of rights is inevitable, when
rights asserted by individuals are in conflict.
192 Several decisions of this Court over the last two decades have sought
to bring order to the clash between fundamental rights. In People’s Union for
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PART H
Civil Liberties (PUCL) v Union of India327, this Court was called upon to
balance the right to information of voters (requiring the disclosure of the
assets of candidates and their spouses at an election) with the right to privacy
implicit in Article 21. In drawing the balance, a bench of three Judges of this
Court gave primacy to the entitlement of citizens to be informed about the
affairs of those who would represent them in electoral democracy. As the
Court held:
“121…By calling upon the contesting candidate to disclose

the assets and liabilities of his/her spouse, the fundamental
right to information of a voter/citizen is thereby promoted.
When there is a competition between the right to privacy of an
individual and the right to information of the citizens, the
former right has to be subordinated to the latter right as it
serves the larger public interest. The right to know about the
candidate who intends to become a public figure and a
representative of the people would not be effective and real if
only truncated information of the assets and liabilities is
given.”328
The Court held that the provision contained in the Representation of People
Act 1951 for a disclosure of assets and liabilities only to the Speaker or to the
Chairman of the House did not adequately protect the citizen’s right to
information, resulting in a violation of the guarantee of free speech and
expression.
193 In Thalappalam Service Cooperative Bank Limited v State of
Kerala329, this Court dealt with a conflict between the right to information
327 (2003) 4 SCC 399

329 (2013) 16 SCC 82
265
PART H
[(protected by Article 19(1)(a)] and the right to privacy (protected by Article
21). The Court observed:
“61. The right to information and right to privacy are,

therefore, not absolute rights, both the rights, one of which
falls under Article 19(1)(a) and the other under Article 21 of
the Constitution of India, can obviously be regulated,
restricted and curtailed in the larger public interest. Absolute
or uncontrolled individual rights do not and cannot exist in any
modern State. Citizens' right to get information is statutorily
recognised by the RTI Act, but at the same time limitations
are also provided in the Act itself, which is discernible from
the Preamble and other provisions of the Act.”330
The Court held that the balance between the right to information and the right
to privacy is drawn under the Right to Information Act 2005: if the information
which is sought is personal and has no relationship with a public activity or
interest, a public authority is not legally bound to provide such information. If
the information which is sought is to be made available in the larger public
interest, reasons have to be recorded because the person from whom the
information is sought has a right to privacy guaranteed by Article 21.
Thalappalam considered a conflict arising between two fundamental rights,
the right to information protected by Article 19(1)(a) and the right to privacy
which is protected by Article 21.
194 More recently, in G Sundarrajan v Union of India331, a two judge
Bench considered a challenge to the establishment of a nuclear power plant
on the ground that it would violate the right to life guaranteed by Article 21.
Noting that there was a need to draw a balance between the assertion of
331 (2013) 6 SCC 620
266
PART H
several rights including the protection of the environment, the Court observed
that the larger public interest must prevail:
“198. We have to resolve the issue whether the establishment

of NPP would have the effect of violating the right to life
guaranteed under Article 21 to the persons who are residing
in and around Kudankulam or by establishing the NPP, it will
uphold the right to life in a larger sense. While balancing the
benefit of establishing KKNPP Units 1 to 6, with right to life and
property and the protection of environment including marine
life, we have to strike a balance, since the production of
nuclear energy is of extreme importance for the economic
growth of our country, alleviate poverty, generate
employment, etc. While setting up a project of this nature, we
have to have an overall view of larger public interest rather
than smaller violation of right to life guaranteed under Article
21 of the Constitution.”332
In Subramanian Swamy v Union of India333, the learned Chief Justice,
speaking for a Bench of two judges emphasised the need for a sense of
balance when the assertion of fundamental rights by two citizens is in conflict:
“137…One fundamental right of a person may have to coexist

in harmony with the exercise of another fundamental right by
others and also with reasonable and valid exercise of power
by the State in the light of the directive principles in the
interests of social welfare as a whole. The Court's duty is to
strike a balance between competing claims of different
interests.”334
Noting that the “balancing of fundamental rights is a constitutional necessity”,
the Court has attempted to harmonise reputation as an intrinsic element of the
right to life under Article 21 with criminal defamation as a restriction under
Article 19(2).

333 (2016) 7 SCC 221
267
PART H
195 In Asha Ranjan v Chandrakeshwar Prasad335, this Court dealt with a
case involving a conflict between the fundamental rights of two individuals
within Article 21. There was on the one hand an assertion of the right to life on
the part of an individual accused of an offence, who claimed a right to a fair
trial, and the protection of the interests of the victim which was also relatable
to the same fundamental right under Article 21. In resolving the conflict, the
Court gave expression to the need to preserve “paramount collective
interests”:
“61…circumstances may emerge that may necessitate for

balancing between intra-fundamental rights. It has been
distinctly understood that the test that has to be applied while
balancing the two fundamental rights or inter fundamental
rights, … may be different than the principle to be applied in
intra-conflict between the same fundamental right. To
elaborate, as in this case, the accused has a fundamental
right to have a fair trial under Article 21 of the Constitution.
Similarly, the victims who are directly affected and also form a
part of the constituent of the collective, have a fundamental
right for a fair trial. Thus, there can be two individuals both
having legitimacy to claim or assert the right. The factum of
legitimacy is a primary consideration. It has to be
remembered that no fundamental right is absolute and it can
have limitations in certain circumstances. Thus, permissible
limitations are imposed by the State. The said limitations are
to be within the bounds of law. However, when there is intra-
conflict of the right conferred under the same article, like fair
trial in this case, the test that is required to be applied, we are
disposed to think, it would be “paramount collective interest”
or “sustenance of public confidence in the justice
dispensation system”.336
196 These decisions indicate that the process of resolving conflicts arising
out of the assertion of different fundamental rights and conflicts within the
same fundamental right, necessarily involves judicial balancing. In finding a
335 (2017) 4 SCC 397

268
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just balance this Court has applied norms such as the ‘paramount public
interest’. In seeking to draw the balance between political freedoms and
economic freedoms, the Court must preserve the euphony between
fundamental rights and directive principles. It is on their co-existence that the
edifice of the Constitution is founded. Neither can exist without the other.
Democracy rejects the totalitarian option of recognising economic entitlements
without political liberty. Economic rights have become justiciable because of
the constitutional guarantees founded on freedom and the rule of law. The
Constitution is founded on democratic governance and is based on the
protection of individual freedom. Freedom comprehends both fundamental
political freedoms as well as basic human rights. A just balance between the
two is integral to the fulfilment of India’s constitutional commitment to realise
human liberty in a social context which is cognizant of the histories of
discrimination and prejudice suffered by large segments of our society. Where
the question is related to the limiting the right to privacy, Puttaswamy requires
the test of proportionality. It has, therefore, to be tested whether the Aadhaar
scheme fulfils the test of proportionality.
197 The test of proportionality, which began as an unwritten set of general
principles of law, today constitutes the dominant “best practice” judicial
standard for resolving disputes that involve either a conflict between two rights
claims or between a right and a legitimate government interest. 337 It has
337JudMathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of
Balancing, Emory Law Journal, Vol. 60 (2011)
269
PART H
become a “centrepiece of jurisprudence” across the European continent as
well as in common law jurisdictions including the United Kingdom, South
Africa and Israel.338 Proportionality is the “defining doctrinal core of a
transnational rights-based constitutionalism”339. It has been raised to the rank
of a fundamental constitutional principle,340 and represents a global shift from
a culture of authority to a culture of justification.341 Servin argues that
jurisprudence on privacy has evolved from the “right to be let alone”, to now
being centered around the principle of proportionality.342
198 Subjecting the Aadhaar scheme to the test of proportionality does not
mean that the Court is second-guessing the wisdom of the legislature. State
action must be subjected to judicial scrutiny to ensure that it passes
constitutional muster. The test of proportionality stipulates that the nature and
extent of the State’s interference with the exercise of a right (in this case, the
rights to privacy, dignity, choice, and access to basic entitlements) must be
proportionate to the goal it seeks to achieve (in this case, purported plugging
of welfare leakage and better targeting).
338Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia
Journal of Transnational Law, Vol. 47 (2008)
339Jud Mathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of
Balancing, Emory Law Journal, Vol. 60 (2011)

340 Ibid
341Moshe Cohen-Eliya and Iddo Porat, Proportionality and the Culture of Justification, American Journal of
Comparative Law Vol. 59 (2011) (cited in); Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of
Rights, South African Journal on Human Rights, Vol. 10 (1994)
342Andrew B. Serwin, Privacy 3.0 – The Principle of Proportionality, University of Michigan Journal of Law
Reform, Vol. 42 (2009)
270
PART H
Within the framework of constitutional interpretation, proportionality serves as
a test to determine the extent to which fundamental rights can be limited in the
face of legislative intervention which purports to further social and public
interest aims. Aharon Barak, the former Chief Justice of the Supreme Court of
Israel has described the importance of the proportionality test as thus:343
“Examination of the test of proportionality (in the narrow

sense) returns us to first principles that are the foundation of
our constitutional democracy and the human rights … Our
democracy is characterized by the fact that it imposes limits
on the ability to violate human rights; that it is based on the
recognition that surrounding the individual there is a wall
protecting his right, which cannot be breached even by
majority.”
In applying the proportionality test, the Court cannot mechanically defer to the
State’s assertions. Especially given the intrusive nature of the Aadhaar
scheme, such deference to the legislature is inappropriate. The State must
discharge its burden by demonstrating that rights-infringing measures were
necessary and proportionate to the goal sought to be achieved.
H.2 Proportionality standard in Indian jurisprudence
199 In India, the principle of proportionality has a long jurisprudential history
which has been adverted to in a judgment344 of this Court:
“On account of a Chapter on Fundamental Rights in Part III of

our Constitution right from 1950, Indian Courts did not suffer
from the disability similar to the one experienced by English
Courts for declaring as unconstitutional legislation on the
principle of proportionality or reading them in a manner
343 Adalah v. The Minister of Interior, HCJ 7052/03, English translation available at
http://elyon.court.gov.il/files_eng/03/520/070a47/03070520.a47.pdf
344 Om Kumar v Union of India, (2001) 2 SCC 386
271
PART H
consistent with the charter of rights. Ever since 1950, the

principle of ‘proportionality’ has indeed been applied
vigorously to legislative (and administrative action) in
India. While dealing with the validity of legislation infringing
fundamental freedoms enumerated in Article 19(1) of the
Constitution of India…this court had occasion to consider
whether the restrictions imposed by legislation were
disproportionate to the situation and were not the least
restrictive of the choices.” (Emphasis supplied)
The early decisions of this Court may not have used the expression
“proportionality”. But the manner in which the court explained what would be a
permissible restraint on rights indicates the seeds or the core of the
proportionality standard. Proportionality has been the core of reasonableness
since the 1950s. Chintaman Rao v State of Madhya Pradesh345 concerned
a State legislation which empowered the government to prohibit people in
certain areas from manufacturing bidis. The object of the law was to ensure
the supply of adequate labour for agricultural purposes in areas where bidi
manufacturing was an alternative source of employment for persons likely to
be engaged in agricultural labour. The Court held that the State need not have
prohibited all labourers from engaging in bidi manufacturing throughout the
year in order to satisfy the objective. Justice Mahajan, on behalf of a
Constitution Bench held:
“6.The phrase "reasonable restriction" connotes that the

limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation
which arbitrarily or excessively invades the right cannot
be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom
345 1950 SCR 759
272
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guaranteed in article 19(1)(g) and the social control permitted

by clause (6) of article 19, it must be held to be wanting in
that quality.” (Emphasis supplied)
200 State of Madras v V G Row346 considered whether the action of the
Tamil Nadu government in declaring an association unlawful violated Article
19(1)(c) of the Constitution. Chief Justice Patanjali Sastri, speaking for the
Constitution Bench, propounded what has come to be regarded as a classic
statement of the principle of proportionality in our law:
“15…the test of reasonableness, wherever prescribed, should

be applied to each individual statute impugned, and no
abstract standard, or general pattern of reasonableness can
be laid down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all
enter into the judicial verdict...” (Emphasis supplied)
The decision of the Constitution Bench in State of Bihar v Kamla Kant
Misra347 concerned a challenge to the second part of sub-section (6) of
Section 144 of the Code of Criminal Procedure on the ground that it violated
sub-clauses (b), (c) and (d) of Clause (1) of Article 19 of the Constitution.
Justice K S Hegde, speaking for the majority, observed:
“15.One of the important tests to find out whether a restriction

is reasonable is to see …whether the restriction is in
excess of the requirement or whether it is imposed in an
arbitrary manner”.348 (Emphasis supplied)
346 1952 SCR 597

347 (1969) 3 SCC 337
273
PART H
201 In Mohammed Faruk v State of Madhya Pradesh349 a Constitution
Bench of this Court held that in determining the proportionality of a measure
restricting an individual’s right under Article 19(1)(g) of the Constitution, the
factors to be taken into consideration would include whether a less drastic
restriction would have served the purpose. As the Court held:
“10…The Court must in considering the validity of the

impugned law imposing a prohibition on the carrying on
of a business or profession, attempt an evaluation of its
direct and immediate impact upon the fundamental rights
of the citizens affected thereby and the larger public
interest sought to be ensured in the light of the object
sought to be achieved, the necessity to restrict the
citizen's freedom, [...],the possibility of achieving the
object by imposing a less drastic restraint , [...] or
that a less drastic restriction may ensure the object
intended to be achieved.”350
(Emphasis supplied)
In Bishambhar Dayal Chandra Mohan v State of Uttar Pradesh351,
“reasonable restriction” was held to mean that the limitation imposed on the
enjoyment of a right should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public.
202 The decision in Om Kumar v Union of India352 concerned the quantum
of punishment imposed in departmental disciplinary proceedings. Justice M.
Jagannadha Rao, speaking for a two judge Bench, defined proportionality in
the following terms:
“28. By 'proportionality', we mean the question whether, while

regulating exercise of fundamental rights, the appropriate or
349 (1969) 1 SCC 853

351 (1982) 1 SCC 39
352 (2001) 2 SCC 386
274
PART H
least restrictive choice of measures has been made by the

legislature or the administrator so as to achieve the object of
the legislation or the purpose of the administrative order, as
the case may be. Under the principle, the Court will see that
the legislature and the administrative authority 'maintain a
proper balance between the adverse effects which the
legislation or the administrative order may have on the rights,
liberties or interests of persons keeping in mind the purpose
which they were intended to serve'. The legislature and the
administrative authority are however given an area of
discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not is for
the Court. That is what is meant by proportionality.”353
(Emphasis supplied)
In Teri Oat Estates v U.T., Chandigarh354, this Court adopted a similar
interpretation of proportionality.
203 In Modern Dental College and Research Centre v State of Madhya
Pradesh,355 a Constitution Bench of this Court while dealing with a challenge
to the vires of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha
(Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, held
that proportionality is the correct test to apply in the context of Article 19(6).
Justice A K Sikri, speaking for the Court, held thus :
“60…Thus, while examining as to whether the impugned

provisions of the statute and Rules amount to reasonable
restrictions and are brought out in the interest of the general
public, the exercise that is required to be undertaken is the
balancing of fundamental right to carry on occupation on the
one hand and the restrictions imposed on the other hand.
This is what is known as 'Doctrine of Proportionality'.
Jurisprudentially, 'proportionality' can be defined as the
set of Rules determining the necessary and sufficient
conditions for limitation of a constitutionally protected

354 (2004) 2 SCC 130
355 (2016) 7 SCC 353
275
PART H
right by a law to be constitutionally permissible...”356

(Emphasis supplied)
While expounding on the theory of proportionality, Justice AK Sikri referred to
Aharon Barak’s seminal book357 on proportionality:
“60…A limitation of a constitutional right will be

constitutionally permissible if: (i) it is designated for a proper
purpose; (ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that
purpose; (iii) the measures undertaken are necessary in that
there are no alternative measures that may similarly achieve
that same purpose with a lesser degree of limitation; and
finally (iv) there needs to be a proper relation ('proportionality
stricto sensu' or 'balancing') between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.”358
Justice Sikri held that laws limiting constitutional rights must satisfy the test of
proportionality:
“63…The law imposing restrictions will be treated as

proportional if it is meant to achieve a proper purpose, and if
the measures taken to achieve such a purpose are rationally
connected to the purpose, and such measures are
necessary….359
64. The exercise which, therefore, to be taken is to find out as

to whether the limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise involves the
weighing up of competitive values, and ultimately an
assessment based on proportionality i.e. balancing of
different interests.”360 (Emphasis supplied)

357 Aharon Barak, Proportionality: Constitutional Rights and their Limitations, Cambridge University Press (2012)
276
PART H
204 In KS Puttaswamy v Union of India361, one of us (Chandrachud J.),
speaking for four judges, laid down the tests that would need to be satisfied
under our Constitution for violations of privacy to be justified. This included the
test of proportionality:
“325…A law which encroaches upon privacy will have to

withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of
privacy must be justified on the basis of a law which stipulates
a procedure which is fair, just and reasonable. The law must
also be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or
personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law; (ii) need,
defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.”362
The third principle (iii above) adopts the test of proportionality to ensure a
rational nexus between the objects and the means adopted to achieve them.
The essential role of the test of proportionality is to enable the court to
determine whether a legislative measure is disproportionate in its interference
with the fundamental right. In determining this, the court will have regard to
whether a less intrusive measure could have been adopted consistent with the
object of the law and whether the impact of the encroachment on a
fundamental right is disproportionate to the benefit which is likely to ensue.
The proportionality standard must be met by the procedural and substantive
aspects of the law.
361 (2017) 10 SCC 1

277
PART H
Justice Sanjay Kishan Kaul, in his concurring opinion, suggested a four-
pronged test as follows363:
“(i)The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;
(iii) The extent of such interference must be proportionate to
the need for such interference;
(iv) There must be procedural guarantees against abuse of
such interference.”
The ‘test of proportionality’ is a judicially-entrenched principle which has
invigorated fundamental rights jurisprudence in the country. The application of
the proportionality standard in rights-based adjudication is well-recognised
across diverse jurisdictions.
H.3 Comparative jurisprudence
205 Since some of the concerns raised by the Aadhaar scheme have arisen
for the first time in India, it would be appropriate to discuss judgments of
foreign jurisdictions which have inquired into the proportionality of measures
many of them similar to those prescribed under the Aadhaar Act.
206 The Privy Council formulated the parameters of proportionality in Elloy
de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing,364 elaborating a three-fold test:
“whether: (i) the legislative objective is sufficiently important to

justify limiting a fundamental right; (ii) the measures designed

364 [1999] 1 AC 69
278
PART H
to meet the legislative objective are rationally connected to it;

and (iii) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.”
Subsequently in Huang (FC) v Secretary of State for the Home
Department,365 the House of Lords added a fourth parameter which is “the
need to balance the interests of society with those of individuals and groups.”
207 In the Federal Census Act Case (Volkszählungsurteil),366 the
Federal Constitutional Court of the Federal Republic of Germany dealt with a
challenge to the German Federal Census Act, 1983, which provided for
collection of citizens’ basic personal information, including, inter alia, source of
income, occupation, supplementary employment, educational background and
hours of work. Certain provisions provided for transmission of statistical data
to local governments for the purposes of regional planning, surveying,
environmental protection, and redrawing of election districts. The Court struck
down provisions permitting transfer of statistical data to local authorities on
the ground that they enabled authorities to compare census data with local
housing registries. The Court observed that the combination of statistical data
and a personalized registry could lead to the identification of particular
persons, which would lead to a chilling effect upon individuals’ right to
informational self-determination.
365 [2007] UKHL 11

366 (1983) 65 BVerfGE 1
279
PART H
The Court developed a ‘fundamental right of informational self-determination’
drawing from Articles 1(1) and 2(1) of the German Constitution, which protect
the fundamental right to human dignity and the right to freely develop one’s
personality. Explaining the importance of this right in the context of risks
occasioned by modern data processing, the Court noted that:
“The freedom of individuals to make plans or decisions in

reliance on their personal powers of self-determination may
be significantly inhibited if they cannot with sufficient certainty
determine what information on them is known in certain areas
of their social sphere and in some measure appraise the
extent of knowledge in the possession of possible
interlocutors. A social order in which individuals can no longer
ascertain who knows what about them and when and a legal
order that makes this possible would not be compatible with
the right to informational self-determination…This would not
only restrict the possibilities for personal development of
those individuals but also be detrimental to the public good
since self-determination is an elementary prerequisite for the
functioning of a free democratic society predicated on the
freedom of action and participation of its members…The
fundamental right guarantees in principle the power of
individuals to make their own decisions as regards the
disclosure and use of their personal data.”367
The Court, while recognizing the right to informational self-determination,
observed that distinct silos of data “can be pieced together with other data
collections particularly when individual integrated information systems are
built up – to add up to a partial or virtually complete personality profile,” and
that too with, “the person concerned having no means of controlling its truth
and application.”368 Of crucial importance is the Court’s observation that the
right to informational self-determination is particularly endangered because
367Jürgen Bröhmer et al., “BVerfGE 65, 1 - Census Act” in 60 Years German Basic Law: The German
Constitution and its Court - Landmark Decisions of the Federal Constitutional Court of Germany in the Area of
Fundamental Rights (Suhainah Wahiduddin ed.), (2012) at Pages 147-148, available at
http://www.kas.de/wf/doc/kas_32858-1522-1-30.pdf?121123115540
368 Census Act Case, (1983)
280
PART H
in reaching decisions, one no longer has to rely on manually collected
registries and files. Today, the technical means of storing individual
statements about personal or factual situations of a certain or verifiable
person with the aid of automatic data processing are practically unlimited and
can be retrieved in a matter of seconds irrespective of distances.369
The Court noted, however, that the right to informational self-determination is
not absolute and that public sector entities could collect personal data under
certain conditions. The Court held that there must be a statutory basis for this
informational activity, and that it must satisfy the principle of proportionality.
On the need for a statutory basis, the Court held that:
“The use of the data is limited to the purpose specified by law.

If for no other reason than because of the dangers associated
with automated data processing, protection is required
against unauthorized use - including protection against such
use by other governmental entities - through a prohibition on
the transfer and use of such data”370
“Clearly defined conditions must be created for processing to
ensure that individuals do not become mere data subjects in
the context of the automated collection and processing of the
information pertaining to their person. Both the absence of a
connection with a specific purpose that can be recognized
and verified at all times and the multifunctional use of data,
reinforce the tendencies that are to be checked and restricted
by data-protection legislation, which represents the concrete
manifestation of the constitutionally guaranteed right to
informational self-determination.”371
On the principle of proportionality, the Court held that:
“The legislature must in its statutory regulations respect the

principle of proportionality. This principle, which enjoys
constitutional status, follows from the nature of the
369Census Act Case, (1983)

370 Ibid, at page 150.
281
PART H
fundamental rights themselves, which, as an expression of

the general right of the public to freedom from interference by
the state, may be restricted by the public powers in any given
case only insofar as indispensable for the protection of public
interests … In view of the threats described above that arise
from the use of automated data processing, the legislature
must more than was the case previously, adopt organizational
and procedural precautions that work counter to the threat of
violation of the right of personality …”372
“The survey program of the 1983 Census Act also satisfies, to
the extent relevant to the matter under review, the principle of
proportionality. A measure to achieve the intended purpose
must therefore be suitable and necessary; the intensity of the
attendant action may not be disproportionate to the
importance of the matter and the compromises imposed upon
the public.”373
The Court concluded that according to the principles of purpose specification
and proportionality, not only must the purpose for which data is being
collected be specified at the time of collection, but the data acquired must also
not exceed that which is absolutely necessary for accomplishing the specified
purpose. In light of this, the Court directed the German Parliament to amend
the law in certain particulars before the census could be carried out, and to
close all loopholes in the law that may lead to abuses in the collection,
storage, use and transfer of personal data.
208 The ECtHR dealt with whether retention of DNA samples of individuals
who were arrested but who were later acquitted or had charges against them
dropped was a violation of the right to privacy. In S and Marper v United

282
PART H
Kingdom,374 the ECtHR noted the “blanket and indiscriminate nature of the
power of retention”:
“The material may be retained irrespective of the nature or

gravity of the offence with which the individual was originally
suspected or of the age of the suspected offender;
fingerprints and samples may be taken—and retained—from
a person of any age, arrested in connection with a recordable
offence, which includes minor or non-imprisonable offences.
The retention is not time-limited; the material is retained
indefinitely whatever the nature or seriousness of the offence
of which the person was suspected. Moreover, there exist
only limited possibilities for an acquitted individual to have the
data removed from the nationwide database or the materials
destroyed; in particular, there is no provision for independent
review of the justification for the retention according to
defined criteria, including such factors as the seriousness of
the offence, previous arrests, the strength of the suspicion
against the person and any other special circumstances.”375
The Court concluded that the retention constituted a disproportionate
interference with the Applicants’ right to privacy:
“125…That the blanket and indiscriminate nature of the

powers of retention of the fingerprints, cellular samples and
DNA profiles of persons suspected but not convicted of
offences, as applied in the case of the present applicants,
fails to strike a fair balance between the competing public and
private interests and that the respondent State has
overstepped any acceptable margin of appreciation in this
regard. Accordingly, the retention at issue constitutes a
disproportionate interference with the applicants’ right to
respect for private life and cannot be regarded as
necessary in a democratic society…”
(Emphasis supplied)
The Court rejected the government’s arguments that fingerprints constituted
neutral, objective, irrefutable and unintelligible material, holding that they
contained unique information about an individual, allowing their precise
374 (2008) 48 EHRR 1169

375 Ibid, at Paragraph 119
283
PART H
identification in certain circumstances. The Court concluded that the collection
of fingerprints was therefore capable of affecting private life, and retention of
such information without consent “cannot be regarded as neutral or
insignificant.”
209 In 2012, the French Constitutional Council (“Council”) – the body that
reviews the constitutionality of French laws – declared four provisions of the
Identity Protection Act, which proposed the introduction of a new national
biometric ID for citizens, to be unconstitutional.376 Articles 3 and 5 were
among the provisions that were struck down. Article 3 authorized that the
national ID card may contain data which would enable the holder to identify
himself or herself on electronic communication networks or use his or her
electronic signature. The Article stated that:
“If requested by its holder, the national identity card may also
contain data, stored separately, enabling it to identify itself on
electronic communication networks and to affix its electronic
signature. Upon each use, the interested party shall decide
which identification data are to be transmitted electronically.”
The Council observed that Article 3 did not stipulate the nature of the data that
was being collected, nor did it provide any guarantee of maintaining
confidentiality. Thus, the Council declared Article 3 to be unconstitutional:
“that the provisions of Article 3 do not specify either the

nature of the “data” through which these functions may be
implemented or the guarantees ensuring the integrity and
confidentiality of this data; that they do not define in any
376Decision No. 2012-652 DC of 22 March 2012 by Le Conseil Constitutionnel, available at http://www.conseil-

constitutionnel.fr/conseil-constitutionnel/english/case-law/sample-of-decisions-in-relevant-areas-
dc/decision/decision-no-2012-652-dc-of-22-march-2012.105428.html
284
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greater detail the conditions under which the persons

implementing these functions are to be authenticated,
especially when they are minors or are subject to legal
protection; that accordingly, Parliament acted in excess of its
powers; that accordingly Article 3 must be ruled
unconstitutional;”
Article 5 allowed for the establishment of a database of personal information
which would include, in addition to the marital status and residence of the
holder, their height, eye colour, fingerprints and photograph for the issuance
of French passports and national ID cards and for conducting investigations
involving certain offences if authorised by a public prosecutor or a judge.
The Council relied on Article 34 of the French Constitution to hold that it was
incumbent upon the Parliament to strike a balance between safeguarding
public order and bringing offenders to justice on one hand, and the right to
privacy on the other. The Council placed reliance on the Declaration of the
Rights of Man and the Citizen of 1789. Article 2 of the Declaration states “The
aim of every political association is the preservation of the natural and
imprescriptible rights of Man. These rights are liberty, property, safety and
resistance to oppression”. The Council held that the liberty proclaimed by
Article 2 includes the right to respect for private life, and accordingly, that “the
collection, registration, conservation, consultation and communication of
personal data must be justified on grounds of general interest and
implemented in an adequate manner, proportionate to this objective.” The
Council held that Article 5 violated the French Constitution as the nature of the
data collected was such that it would facilitate the identification of French
285
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citizens on the basis of their fingerprints, thus breaching the right to respect
for private life:
“Considering however that, given its object, this database

containing personal data is intended to collect data relating to
almost all of the population of French nationality; that since
the biometric data registered in this file, including in
particular fingerprints, are themselves liable to be
compared with physical traces left involuntarily by an
individual or collected unbeknown to him, they are
particularly sensitive; that the technical characteristics of
this database as defined by the contested provisions
enable it to be consulted for purposes other than the
verification of an individual's identity; that the provisions of
the act referred authorise this database to be consulted or
viewed not only in relation to the issue or renewal of identity
and travel documents or to verify the holder of such a
document, but also for other purposes of an administrative
nature or by the investigating police;…
…having regard to the nature of the data registered, the
scope of this processing, its technical characteristics and the
conditions under which it may be consulted, the provisions of
Article 5 violate the right to respect for privacy in a manner
which cannot be regarded as proportionate to the goal
pursued; that accordingly, Articles 5 and 10 of the act must be
ruled unconstitutional…” (Emphasis supplied)
Subsequently, Law 2012-410 of March 27, 2012, on Identity Protection was
published in the official gazette of France, without Articles 3 and 5, which had
been rendered unconstitutional by the Council.377
210 Aycaguer v France378 concerned the applicant’s refusal to undergo
biological testing, the result of which was to be included in the national
computerised DNA database. As a result of his refusal, he was convicted. The
ECtHR held that the regulations on the storage of DNA profiles did not provide
377LOI n° 2012-410 du 27 mars 2012 relative à la protection de l'identité, available at

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000025582411&dateTexte=&categorieLien
=id.
378 Application no. 8806/12
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individuals with sufficient protection, due to its duration and the fact that the
data could not be deleted. The Court concluded that the regulations failed to
strike a balance between competing public and private interests and held,
unanimously, that there had been a violation of Article 8 (right to respect for
private life) of the European Convention on Human Rights.
211 The Conseil d'Etat379 in Association pour la promotion de l'image 380
was asked whether a decree regulating the use and storage of data from
biometric passports was lawful. One of the stipulations of the decree was that
eight fingerprints were stored by the authorities, while only two were required
for the passport. The Conseil d'Etat stated that the collection and retention of
six more fingerprints to be centrally stored was irrelevant and excessive in
relation to the purpose of the computerized database.
212 In Digital Rights Ireland Ltd v Minister,381 the Court of Justice of the
European Union held that the EU legislature had exceeded the limits of the
principle of proportionality in relation to certain provisions of the Charter of
Fundamental Rights of the European Union – Articles 7, 8 and 52(1) – by
adopting the Data Retention Directive. According to the Directive, member
states were obliged to store citizens’ telecommunications data for a minimum
of 6 months and a maximum of 24 months. The Directive empowered police
379The Conseil d’Etat (Council of State) is a body of the French government that acts as legal advisor of the
executive branch and as the supreme court for administrative justice
380 Conseil d’ Etat in France, 26 October 2011
381 C‑293/12 and C‑594/12
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and security agencies to request access to details such as IP address and
time of use of all e-mails, phone calls and text messages sent or received.
The Court applied the test of proportionality to the measures. It was noted
that metadata allows officials to make precise conclusions about a person’s
private life, and dragnet data collection creates a chilling effect based on the
sense that one’s life is subject to surveillance at all times. On the nature of
metadata, the Court observed that:
“Taken as a whole, [metadata] may allow very precise

conclusions to be drawn concerning the private lives of the
persons whose data has been retained, such as the habits of
everyday life, permanent or temporary places of residence,
daily or other movements, the activities carried out, the social
relationships of those persons and the social environments
frequented by them.”382
The Court found that surveillance serves an important public interest – public
security – and that the right to security is itself a fundamental right under
Article 6 of the Charter.383 However, the Court adopted a two-pronged
proportionality test to conclude that the Directive’s retention and access
requirements were not proportional to that interest.
“…According to the settled case-law of the Court, the

principle of proportionality requires that acts of the EU
institutions be appropriate for attaining the legitimate
objectives pursued by the legislation at issue and do not
exceed the limits of what is appropriate and necessary in
order to achieve those objectives.”384

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The retention measure was held to be unnecessary to fulfill the objective of
fighting against serious crime:
“As regards the necessity for the retention of data required by

Directive 2006/24, it must be held that the fight against
serious crime, in particular against organised crime and
terrorism, is indeed of the utmost importance in order to
ensure public security and its effectiveness may depend to a
great extent on the use of modern investigation techniques.
However, such an objective of general interest, however
fundamental it may be, does not, in itself, justify a
retention measure such as that established by Directive
2006/24 being considered to be necessary for the
purpose of that fight. (Emphasis supplied)”385
The Court criticized the Directive for failing to lay down any clear or precise
rules governing the extent of the interference with the fundamental rights
enshrined in Articles 7 and 8 of the Charter. It observed that the Directive was
overbroad because it applied to all data, regardless of the existence of
suspicion, and contained no criteria for limiting government access or
safeguards for preventing abuse:
“…Directive 2006/24 covers, in a generalised manner, all

persons and all means of electronic communication as well as
all traffic data without any differentiation, limitation or
exception being made in the light of the objective of fighting
against serious crime…
…Whilst seeking to contribute to the fight against serious
crime, Directive 2006/24 does not require any relationship
between the data whose retention is provided for and a threat
to public security and, in particular, it is not restricted to a
retention in relation (i) to data pertaining to a particular time
period and/or a particular geographical zone and/or to a circle
of particular persons likely to be involved, in one way or
another, in a serious crime, or (ii) to persons who could, for
other reasons, contribute, by the retention of their data, to the
prevention, detection or prosecution of serious offences.”386
“Not only is there a general absence of limits in Directive
2006/24 but Directive 2006/24 also fails to lay down any

386 Ibid, at paras 57-59
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objective criterion by which to determine the limits of the

access of the competent national authorities to the data and
their subsequent use for the purposes of prevention,
detection or criminal prosecutions concerning offences that, in
view of the extent and seriousness of the interference with the
fundamental rights enshrined in Articles 7 and 8 of the
Charter, may be considered to be sufficiently serious to justify
such an interference. On the contrary, Directive 2006/24
simply refers, in Article 1(1), in a general manner to serious
crime, as defined by each Member State in its national
law.”387
The Court concluded that the Directive failed to set out “clear and precise
rules”388 for access or for how states should judge the period of time for which
data should be held, and “entails a wide-ranging and particularly serious
interference with those fundamental rights in the legal order of the EU, without
such an interference being precisely circumscribed by provisions to ensure
that it is actually limited to what is strictly necessary.”389 The Court struck
down the Directive on the basis of the scope of the data to be retained, 390 the
lack of limits imposed on state access,391 and the failure to distinguish
between the treatment of data based on its usefulness and relevance.392
Of crucial importance is the Court’s emphasis that the judicial review of the EU
legislature’s discretion “should be strict” because of “the important role played
by the protection of personal data in the light of the fundamental right to
respect for private life and the extent and seriousness of the interference with

390 Ibid, at paras 56 –58
391 Ibid, at paras 60-62
392 Ibid, at paras 59, 63– 64
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that right caused by Directive 2006/24”.393 In addition, the Court emphasized
that even highly important objectives such as the fight against serious crime
and terrorism cannot justify measures which lead to forms of interference that
go beyond what is ‘strictly necessary’.394
213 In Michael Schwarz v Stadt Bochum,395 the Court of Justice of the
European Union was called upon to examine the validity of a provision in a
Council Regulation that obliged persons applying for a passport to provide
fingerprints which would be stored in that passport. In considering whether this
regulation was valid and necessary, the Court observed:
“…Article 1(2) of Regulation No 2252/2004 does not provide

for the storage of fingerprints except within the passport
itself, which belongs to the holder alone.396
The regulation not providing for any other form or
method of storing those fingerprints, it cannot in and of
itself…be interpreted as providing a legal basis for the
centralised storage of data collected thereunder or for
the use of such data for purposes other than that of
preventing illegal entry into the European Union.397
In those circumstances, the arguments put forward by the
referring court concerning the risks linked to possible
centralisation cannot, in any event, affect the validity of that
regulation and would have, should the case arise, to be
examined in the course of an action brought before the
competent courts against legislation providing for a
centralised fingerprint base. In the light of the foregoing, it
must be held that Article 1(2) of Regulation No 2252/2004
does not imply any processing of fingerprints that would go
beyond what is necessary in order to achieve the aim of
protecting against the fraudulent use of passports. It follows
that the interference arising from Article 1(2) of Regulation No
2252/2004 is justified by its aim of protecting against the
fraudulent use of passports.”398

395 [2013] EUECJ C-291/12
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The Court held that although the taking and storing of fingerprints in passports
constituted an infringement of the right to respect for private life and the right
to protection of personal data, Article 1(2) of Regulation No 2252/2004 did not
imply any processing of fingerprints that would go beyond what is necessary
in order to achieve the aim of protecting against the fraudulent use of
passports and was therefore valid.
214 In Madhewoo v The State of Mauritius,399 the Judicial Committee of
the Privy Council heard an appeal from a judgment of the Supreme Court of
Mauritius regarding the constitutionality of the provisions of The National
Identity Card (Miscellaneous Provisions) Act, 2013. The Act required biometric
information including fingerprints, to be stored in a central register in which
particulars of the identity of every citizen of Mauritius were to be recorded.
The Supreme Court upheld provisions of the Act that provided for the
compulsory taking of fingerprints. However, the Court struck down those
provisions that provided for the biometric data to be stored in a central
register. The Appellant appealed to the Committee, contending that the
provisions providing for the compulsory taking of fingerprints should also be
struck down as unconstitutional.
The appellant challenged the following provisions of the Act: (i) the storage of
data in a register in electronic data under Section 3; (ii) the obligation to

399 [2016] UKPC 30
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provide biometric information under Section 4; (iii) the collection of
information, in electronic form, for a national ID card under Section 5; (iv) the
compulsory production of an identity card to a policeman under Section 7(1A)
in response to a request under Section 7(1)(b); and (v) the gravity of the
potential penalties for non-compliance under Section 9(3), before the
Mauritian Supreme Court. The challenge was on the ground that the
implementation of the biometric identity card and the permanent storage of
biometric data contravened provisions of the Mauritian Constitution and the
Civil Code.
Regarding the challenge to Section 4 (2)(c) of the Act, which provided that,
“every person who applies for an identity card shall allow his fingerprints, and
other biometric information about himself, to be taken and recorded … for the
purpose of the identity card,” the Supreme Court noted that the right to privacy
under Section 9(1) of the Constitution was not an absolute right and
interference with that right could be permitted under Section 9(2), if a law that
interfered with that right was in the interest, inter alia, of public order. The
Committee noted the Supreme Court’s approach to determining whether
Section 4(2)(c) fell foul of the Constitution, which was based on the test laid
down in S and Marper v The United Kingdom400:
“In addressing the question whether section 4(2)(c) of the

1985 Act (as amended) was reasonably justifiable in a
democratic society the Supreme Court drew on jurisprudence
of the European Court of Human Rights in S v The United
Kingdom…In substance the Court asked whether the
400 [2008] ECHR 1581
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measure pursued a legitimate aim, whether the reasons given

by the national authorities for the interference in pursuit of
that aim were relevant and sufficient, and whether the
measure was proportionate to the aim pursued. This
evaluation is essentially the same as that adopted by the
courts in the United Kingdom in relation to article 8(2) of the
ECHR, in which the courts ask themselves (a) whether the
measure is in accordance with the law, (ii) whether it pursues
a legitimate aim, and (iii) whether the measure will give rise to
interferences with fundamental rights which are
disproportionate, having regard to the legitimate aim pursued.
In relation to (iii), the courts ask themselves: (a) whether the
objective is sufficiently important to justify a limitation of the
protected right, (b) whether the measure is rationally
connected to the objective, (c) whether a less intrusive
measure could have been used without compromising the
achievement of the objective (in other words, whether the
limitation on the fundamental right was one which it was
reasonable for the legislature to impose), and (d) whether the
impact of the infringement of the protected rights is
disproportionate to the likely benefit of the measure”
The Committee reproduced the Mauritian Supreme Court’s holding that the
provisions of the Act which enforced the compulsory taking and recording of
fingerprints interfered with the Appellant’s rights guaranteed under section
9(1) of the Constitution,401 but that the law was justifiable on grounds of public
interest and public order:
“We find that it can hardly be disputed that the taking of

fingerprints within the applicable legal framework pursues the
legitimate purpose of establishing a sound and secure identity
protection system for the nation and thus answers a pressing
social need affording indispensable protection against identity
fraud. Such a purpose, as has been amply demonstrated, is
vital for proper law enforcement in Mauritius. Furthermore,
taking into consideration the appropriate safeguards in the
taking of fingerprints for their insertion in the cards, and the
relatively limited degree of interference involved, we are led to
conclude that such interference is proportionate to the
legitimate aim pursued.”402
401 Maharajah Madhewoo v. The State of Mauritius & Anr., 2015 SCJ 177, at page 23
402 [2016] UKPC 30, at page 10
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Thus, the Mauritian Supreme Court upheld provisions of the Act which
provided for the compulsory taking of fingerprints. The Appellant also
challenged Section 3 of the Act, which provided for biometric data to be stored
in a register. The Supreme Court, after taking into consideration witness
testimonies on the purpose of data collection, noted that though there may
have been a legitimate aim for storing and collecting this data, “sufficiently
strong reasons…to establish that such storage and retention of data for an
indefinite period is proportionate to the legitimate aim pursued” were not
established.403 Thus, the Court held that:
“… it is inconceivable that there can be such uncontrolled

access to personal data in the absence of the vital safeguards
afforded by judicial control. The potential for misuse or abuse
of the exercise of the powers granted under the law would be
significantly disproportionate to the legitimate aim which the
defendants have claimed in order to justify the retention and
storage of personal data under the Data Protection Act.”404
Thus, while the Supreme Court noted that the law providing for the storage
and retention of personal biometric data constituted a permissible derogation
under Section 9(2) of the Constitution,405 it held that since the Respondent had
not established that provisions dealing with storage and retention were
reasonably justifiable in a democratic society, they were unconstitutional.

405
Article 9. Protection of privacy of home and other property: (2) Nothing contained in or done under the authority
of any law shall be held to be consistent with or in contravention of this section to the extent that the law in
question makes provision - (a) in the interests of defence, public safety, public order, public morality, public
health, town and country planning, the development or utilisation of mineral resources or the development or
utilisation of any other property in such a manner as to promote the public benefit; (b) for the purpose of
protecting the rights or freedoms of other persons; (c) to enable an officer or agent of the government or a local
authority, or a body corporate established by law for public purpose, to enter on the premises of any person in
order to value those premises for the purpose of any tax, rate or due, or in order to carry out work connected
with any property that is lawfully on those premises and that belongs to the government, the local authority or
that body corporate, as the case may be; or (d) to authorise, for the purpose of enforcing the judgement or
order of a court in any civil proceedings, the search of any person or property by order of a court or the entry
upon any premises by such order, Except so far as that provision or, as the case may be, the thing done under
its authority is shown not to be reasonably justifiable in a democratic society
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The Judicial Committee did not interfere with the Supreme Court’s decision.
However, it noted an inconsistency in the Supreme Court’s order wherein it
held that the law providing for the storage and retention of fingerprints and
other biometric data constitutes a permissible derogation under section 9(2) of
the Constitution, whilst simultaneously holding the same provisions to be
unconstitutional. The Committee reconciled the holding to be:
“A law providing for the storage and retention of fingerprints

and other personal biometric data regarding the identity of a
person in principle constitutes a permissible derogation, in
the interests of public order, under section 9(2) of the
Constitution.” (Emphasis supplied)
215 The learned Attorney General has relied on cases from other
jurisdictions to buttress his contention that the collection and use of biometric
information for various services have been found to be legal. ‘Biometric
data406’ is defined in the General Data Protection Regulation thus:
“personal data resulting from specific technical processing

relating to the physical, physiological or behavioural
characteristics of a natural person, which allow or confirm the
unique identification of that natural person, such as facial
images or dactyloscopic data.”
The learned Attorney General cited the following judgments of the US
Supreme Court: Vernonia School District 47J v Acton (“Acton”),407 Skinner
v Railway Labor Executives’ Association (“Skinner”),408 Whalen v Roe
(“Whalen”),409 United States v Dionisio (“Dionisio”)410 and Bowen v Roy
406 Article 4(14)

407 515 U.S. 646 (1995)
408 489 U.S. 602 (1989)
409 429 U.S. 589 (1977)
410 410 U.S. 1 (1973)
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(“Bowen”).411 Only Acton, Skinner and Dionisio were decided in the context
of biometrics, which as we have found before, forms the bedrock of the
Aadhaar program. In Acton, the court held that the action of the authorities
conducting random drug testing of high school athletes was legal since the
conditions of collection were nearly identical to those typically encountered in
public restrooms. As a result, it was found that, privacy interests of the
students were negligibly affected. In Skinner, the court found the actions of
the Federal Railroad Administration (“FRA”) requiring mandatory blood and
urine testing of employees involved in train accidents to be constitutional. The
court observed that railroad accidents, if not prevented, could cause massive
loss of life and property. Further, it was held that FRA’s regulations fulfilled a
“special need” because of the interest of the government in ensuring safety of
railroads and were therefore, not “an undue infringement on the justifiable
expectations of privacy of covered employees”. In Whalen, the Court found
that retention of patients’ information such as their name, address and age,
under the New York State Controlled Substances Act, 1972, was not in
violation of the constitutional right to privacy as the Court was satisfied that the
statute provided for proper safeguards and redressal against theft and loss of
information. In Dionisio, the Court found no constitutional infirmity with the
issuance of a subpoena to procure voice recording exhibits by tapping
telephones in order to investigate crimes. The Court held that “neither the
summons to appear before the grand jury, nor its directive to make a voice
recording, infringed upon any interest protected by the Fourth Amendment”.

411 476 U.S. 693 (1986)
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The Court observed that a compelled display of identifiable physical
characteristics does not infringe upon an “interest protected by the privilege
against compulsory self-incrimination”. In Bowen, the Court upheld the
provisions of a welfare scheme which required citizens to furnish their social
security number, rejecting the argument that the use of a social security
number violated the Appellant’s Native American beliefs. The Court held that
the Free Exercise Clause of the First Amendment could not be construed to
place a requirement on the government to conduct its internal affairs in
consonance with the religious beliefs of particular citizens.
In In re Crawford,412 the Ninth Circuit upheld provisions of the Bankruptcy
Code which mandated public disclosure of a Bankruptcy Petition Preparers’
Social Security Number on documents submitted to the Court, noting that the
provision had been enacted to serve governmental interests of preventing
fraud and providing public access to judicial proceedings.
216 Some decisions of lower courts in the US which have considered the
validity of laws or actions of the State deploying biometrics and which have
been cited by the respondents are: Haskell v Harris (“Haskell”),413 Utility
Workers Union of America v Nuclear Regulatory Commission
(“UWUA”),414 Nicholas A Iacobucci v City of Newport (“Iacobucci”),415
412 194 F.3d 954 (9th Cir. 1999)

413 669 F.3d 1049 (9th Cir. 2012)
414 664 F. Supp. 136 (S.D.N.Y. 1987)
415 785 F.2d 1354 (6th Cir. 1986)
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Thom v New York Stock Exchange (“Thom”),416 Perkey v Department of
Motor Vehicles (“Perkey”),417 Buchanan v Wing (Buchanan),418 People v
Stuller (“Stuller”),419 United States v Kelly (“Kelly”)420 and Brown v
Brannon (“Brannon”).421 At first blush, it does seem that these cases support
the Respondents’ stand, however, we cannot lose sight of the context in which
the courts came to the conclusion emphasised by the respondents in support
of their submissions. In Haskell, the Ninth Circuit found a Californian law
which authorized law enforcement officers to collect DNA in the form of a
sample from the buccal swab of the mouth of felony arrestees, who had not
been convicted, to be constitutional. The Court noted that the arrestees had
reduced privacy interests; the physical intrusion of collecting a buccal swab
was de minimis in nature; there were stringent limits on the manner in which
the information was to be used; and the interest of the State in deterring future
criminal acts to exculpate innocent arrestees aided in prison administration
and law enforcement. For the above reasons, the Court found that the
infringement of privacy of the felony arrestees was justified. In UWUA, the
Ninth Circuit ruled that a law requiring individuals working in nuclear power
facilities to submit their fingerprints for identification and criminal history record
checks was not unconstitutional. In Iacobucci, an ordinance which required
employees of liquor selling establishments which permitted nude dancing, to
be fingerprinted and photographed by the police department, was held
416 306 F. Supp. 1002 (S.D.N.Y. 1969)

417 (1986) 42 Cal. 3d 185
418 N.Y.S.2d 865
419 10 Cal. App.3d 582 (1970)
420 55 F.2d 67 (2d Cir. 1932)
421 399 F. Supp. 133 (M.D.N.C. 1975)
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constitutional. The Court observed that fingerprinting and photographing of
employees of retail liquor establishments bore a rational relationship to the
legitimate aim of elimination of crime. In Thom, a New York statute, which as
a condition of employment, required all the employees of member firms of
national stock exchanges to be fingerprinted, was upheld. The Court ruled that
fingerprinting was a necessary means of verifying the existence or non-
existence of a prior criminal record, in order to avert any threat posed by an
employee who was in a position to commit theft of securities. In Perkey, the
Californian Supreme Court upheld the actions of the state mandating an
individual to provide a fingerprint in order to obtain a driver’s license. The
Court held that fingerprint technology was the only reliable means of ensuring
the integrity of the records of the department of motor vehicles as other
methods such as handwriting specimens and photographs were not reliable.
Thus, the submission of fingerprints as part of the license application process,
bore a rational relationship to the State’s goal of promoting safe and lawful
use of highways. In Buchanan, the Court upheld the eligibility requirement for
a welfare aid scheme which mandated participation in an identity verification
procedure known as Automated Finger Imaging System (AFIS), rejecting the
challenge based on religious beliefs of the Petitioner. The Court held that the
Petitioner had failed to prove that the AFIS involved any invasive procedures,
noting that she had acknowledged that she had never seen finger imaging
performed and had no idea whether a laser was involved. In Stuller, the
constitutionality of a law which required “temporary and itinerant classes of
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employees” to undergo fingerprinting in order to protect “visitors and
residents” of a resort city from crime and loss, both against people and against
property, was upheld. In Kelly, the Circuit Court of Appeals rejected a claim
for return of fingerprints of the defendant which had been obtained after he
had been arrested by prohibition agents, holding that there was no reason to
interfere with a method of identifying persons “charged with a crime”. In
Brannon, the court held that a law requiring “massagists” to submit their
fingerprints, photographs and reports of their medical examinations in order to
obtain licenses was valid, noting that the fingerprints and photographs would
aid in their identification as well as in the enforcement of criminal statutes
relating to public morality and decency.
217 The cases cited by the learned Attorney General would not be
applicable in the context of the Aadhaar program. The cases cited dealt with
narrowly tailored legislations set out to achieve very specific objectives. For
instance, courts upheld statutes aimed at protecting a nuclear facility or to
prevent theft of securities, where incidents of sabotage or breach of security
would have led to national disasters. These national disasters in turn would
have resulted in the immediate loss of human life or in a situation of financial
emergency. Such laws, were therefore, enacted in order to assuage security
concerns which, if not implemented, could lead to incidents of massive losses
of life and property.
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Some of the statutes upheld, permitted collection of DNA samples, fingerprints
and photographs for identification. The objective behind these laws was
prevention of crime, albeit on a comparatively smaller scale. Moreover, the
courts in these cases were also satisfied that the procedures involved in
collecting biometrics were not invasive enough to strike them down as
unconstitutional or that there were adequate safeguards to prevent misuse.
The aforementioned cases will not apply in the backdrop of the Aadhaar
program because they were rendered broadly in the context of prevention of
crime. It needs no reiteration that an entire population cannot be presumed to
be siphoning huge sums of money in welfare schemes or viewed through the
lens of criminality, and therefore, considered as having a diminished
expectation of privacy. The judgments cited by the respondents which were
decided in the context of crime, require the State to at least form a reasonable
belief about the criminal antecedents of individuals or their potential to commit
crimes. On the contrary, by collecting identity information, the Aadhaar
program treats every citizen as a potential criminal without even requiring the
State to draw a reasonable belief that a citizen might be perpetrating a crime
or an identity fraud. When the State is not required to have a reasonable belief
and judicial determination to this effect, a program like Aadhaar, which
infringes on the justifiable expectations of privacy of citizens flowing from the
Constitution, is completely disproportionate to the objective sought to be
achieved by the State.
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218 The fundamental precepts of proportionality, as they emerge from
decided cases can be formulated thus:
1. A law interfering with fundamental rights must be in pursuance of a
legitimate state aim;
2. The justification for rights-infringing measures that interfere with or limit the
exercise of fundamental rights and liberties must be based on the
existence of a rational connection between those measures, the situation in
fact and the object sought to be achieved;
3. The measures must be necessary to achieve the object and must not
infringe rights to an extent greater than is necessary to fulfil the aim;
4. Restrictions must not only serve a legitimate purposes; they must also be
necessary to protect them; and
5. The State must provide sufficient safeguards relating to the storing and
protection of centrally stored data. In order to prevent arbitrary or abusive
interference with privacy, the State must guarantee that the collection and
use of personal information is based on the consent of the individual; that it
is authorised by law and that sufficient safeguards exist to ensure that the
data is only used for the purpose specified at the time of collection.
Ownership of the data must at all times vest in the individual whose data is
collected. The individual must have a right of access to the data collected
and the discretion to opt out.
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219 Privacy and proportionality are two interlocking themes that recur
consistently in the above judgements. Privacy, also construed as
“informational self-determination”, is a fundamental value. There is a
consistent emphasis on the impact on personal dignity if private information is
widely available and individuals are not able to decide upon its disclosure and
use. This right of controlling the extent of the availability and use of one’s
personal data is seen as a building block of data protection - especially in an
environment where the state of technology facilitates ease of collection,
analysis and dissemination of information.
220 The blanket and indiscriminate collection of information is seen as a
violation of privacy, which is a constituent of the right to liberty. An extensive
power to retain collected data is also seen as a disproportionate interference
with the right to privacy and not necessary in a democratic society. The
judgments hold that unlimited data retention and unrestricted state access
both constitute a disproportionate interference with privacy and data
protection. They also emphasize the need to clearly stipulate the nature of the
data being collected and ensure its confidentiality. Provisions where these
principles are not respected cannot be regarded as valid. While courts do
recognize the need for public order and security, they emphasize the need to
strike a balance between safeguarding public order and the right to privacy.
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221 The principle of proportionality also recurs through these judgments,
which note that the collection and use of information must be limited to the
purpose specified by law and to the extent indispensable for the protection of
public interest. The striking of a balance between public and private interests
is crucial to proportionality. The judgments hold that there must be a
protection against unauthorized use and clearly defined conditions for
processing of data collected. Those conditions must not be excessive and
must be justified on grounds of public interest and implemented in a manner
proportionate to the objective. Too broad a scope of data collected and
retained, the lack of limits imposed on access to data by authorities and a
failure to distinguish between the treatment of data based on its usefulness
and relevance are seen by Courts as constituting grounds for striking down
the measure. While the State's imperatives are seen as relevant, emphasis is
laid on retention and access requirements being proportionate to those
imperatives and the need to prevent against abuse. Courts have upheld
regulations that are necessary to achieve the legitimate aims and not
excessive in their nature or impact.
The issue is whether the Aadhaar project and the Act, Rules and Regulations
meet the test of proportionality.
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H.4 Aadhaar: the proportionality analysis
222 Under Aadhaar, the State has put forth an objective of transferring
subsidies and entitlements to its citizens. The aim was to curb leakages and
to increase transparent and efficient “targeted delivery of subsidies, benefits
and services”. However, the Act in the present form has surpassed a tailored
objective and has sought to administer every facet of the citizen-state
engagement through mandatory biometric-enabled Aadhaar linking. The
violations of fundamental rights that result from the operation of the Aadhaar
scheme will have to be evaluated on the touchstone of legitimate state
interest and proportionality.
Since biometric systems have been employed, it is fundamental to understand
that the right to privacy and its protection must be at the centre of the debate,
from the very onset of the decision to use biometric data. It is vital that
adequate safeguards are set down for every step of the process from
collection to retention of biometric data. At the time of collection, individuals
must be informed about the collection procedure, the intended purpose of the
collection, the reason why the particular data set is requested and who will
have access to their data. Additionally, the retention period must be justified
and individuals must be given the right to access, correct and delete their data
at any point in time, a procedure familiar to an opt-out option. The intended
purpose should always act as a shining light and adequate caution must be
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taken to ensure that there is no function creep with the lapse of time, in order
to prevent the use of the data for new, originally unintended purposes.
Measures to protect privacy would include enacting more entrenched and
specific legislation so that the right to privacy is not only recognized but
protected in all its aspects. Meeting this obligation would necessarily mean
enactment of data protection legislation as well. The choice of particular
techniques and the role of components in the architecture of the technology
also have a strong impact on the privacy protections provided by the biometric
system.
During the course of the hearing, the CEO of UIDAI, Mr Ajay Bhushan Pandey
was permitted on the request of the learned Attorney General to make a
power-point presentation before the Court, explaining the architecture and
working of the Aadhaar project. On the basis of the presentation, Mr Shyam
Divan, counsel for the petitioners had served a list of questions to the
respondents. Responses to these questions have been filed by UIDAI.
Analysing the power-point presentation by the CEO, questions addressed by
Mr Divan and the responses filed by the respondents will facilitate an
understanding of the architecture of the Aadhaar project.
Our analysis indicates that the correctness of the documents submitted by an
individual at the stage of enrolment or while updating information is not
verified by any official of UIDAI or of the Government. UIDAI does not take
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institutional responsibility for the correctness of the information entering its
database. It delegates this task to the enrolment agency or the Registrar. The
following response has been submitted by the respondents to the queries
addressed specifically on this aspect:
“As per UIDAI process, the verification of the documents is

entrusted to the Registrar. For Verification based on
Documents, the verifier present at the Enrolment Centre will
verify the documents. Registrars/Enrolment agency must
appoint personnel for the verification of documents.”
223 UIDAI does not identify the persons who enrol within the Aadhaar
system. Once the biometric information is stored in the CIDR during
enrolment, it is only matched with the information received at the time of
authentication. Biometric authentication of an Aadhaar number holder is
performed as a “one to one” biometric match against the biometric information
of the Aadhaar number holder in CIDR. Based on the match, UIDAI provides
a ‘yes’ or ‘no’response. Whether the information which is entering into CIDR is
correct or not is a task entrusted to the enrolling agency or the Registrars.
UIDAI does not assume responsibility for it.
The task of verifying whether a person is an illegal resident has also been left
to the enrolling agencies. At the stage of enrolment, a verification of whether a
person has been residing in India for 182 days or more in the past twelve
months is done on the basis of a ‘self-declaration’ of the individual. The
declaration which has been provided in the Aadhaar enrolment forms is thus:
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“Disclosure under section 3(2) of The Aadhaar (Targeted

Delivery of Financial and Other Subsidies, Benefits and
Servìces Act, 2016
I confirm that I have been residing in India for at least 182
days in the preceding 12 months & information (including
biometrics) provided by me to the UIDAI Ìs my own and is
true, correct and accurate. I am aware that my information
including biometrics will be tested for generation of Aadhaar
and authentication. I understand that my identity information
(except core biometric) may be provided to an agency only
with my consent during authentication or as per the provisions
of the Aadhaar Act. I have a right to access my identity
information (except core biometrics) following the procedure
laid down by UIDAI.”422
224 The petitioners have argued that persons who were enrolled under the
Aadhaar programme before the Act came into force on 12 September 2016
(more than a hundred crore) were not even required to make this declaration.
The authenticity of the documents submitted (along with the declaration) is not
checked by UIDAI.
The exception handling process permitting the use of alternative modes of
identification if the Aadhaar authentication fails, is also left to the discretion of
the Requesting Entity. On this aspect, the response which has been provided
to the Court is thus:
“As per Regulation 14(i) of Aadhaar (Authentication)

Regulations 2016, requesting entities shall implement
exception-handling mechanisms and back-up identity
authentication mechanisms to ensure seamless provision of
authentication services to Aadhaar number holders.
Therefore, this exception handling mechanism is to be
implemented and monitored by the requesting entities and in
case of the government, their respective ministries.”
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Forty-nine thousand enrolment operators have been blacklisted by UIDAI. In
reply to the question of the petitioners asking the reasons for blacklisting of
the enrolment operators, UIDAI has stated that a data quality check is done
during the enrolment process and if any Aadhaar enrolment is found to be not
to be compliant with the UIDAI process, the enrolment gets rejected and an
Aadhaar number is not generated. An operator who crosses a threshold
defined in the policy, is blacklisted/ removed from the UIDAI ecosystem.
UIDAI has provided information that forty-nine thousand operators were
blacklisted/removed from the UIDAI ecosystem for the following reasons: (a)
illegally charging residents for Aadhaar enrolment; (b) poor demographic data
quality; (c) invalid biometric exceptions; and (d) other process malpractices.
Once an operator is blacklisted or suspended, further enrolments cannot be
carried out by it until the order of blacklisting/suspension is valid.
225 The Aadhaar architecture incorporates the role of Authentication User
Agencies (AUAs) and Authentication Service Agencies (ASAs). ASAs, under
the Aadhaar (Authentication) Regulations, have been defined as entities
providing necessary infrastructure for ensuring secure network connectivity
and related services for enabling a requesting entity to perform authentication
using the authentication facility provided by UIDAI.423 AUAs have been
defined under the Aadhaar (Authentication) Regulations as requesting entities
that use the Yes/No authentication facility provided by UIDAI. 424 “Yes/No
423 Regulation 2(f), Aadhaar (Authentication) Regulations

424 Regulation 2(g), Aadhaar (Authentication) Regulations
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authentication facility” is a type of authentication facility in which the identity
information and Aadhaar number securely submitted with the consent of the
Aadhaar number holder through a requesting entity, are matched against the
data available in the CIDR, and the Authority responds with a digitally signed
response containing a “Yes” or “No”, along with other technical details related
to the authentication transaction, excluding identity information.425 The other
type of authentication facility is the e-KYC authentication facility, in which the
biometric information and/or OTP and Aadhaar number securely submitted
with the consent of the Aadhaar number holder through a requesting entity,
are matched against the data available in the CIDR, and the Authority returns
a digitally signed response containing e-KYC data along with other technical
details related to the authentication transaction. A requesting entity which, in
addition to being an AUA, uses e-KYC authentication facility provided by
UIDAI is called a “e-KYC User Agency” or “KUA”.426 Under Regulation 15(2), a
requesting agency may permit any other agency or entity to perform Yes/ No
authentication by generating and sharing a separate license key for every
such entity through the portal provided by UIDAI to the said requesting entity.
It has also been clarified that sharing of a license key is only permissible for
performing Yes/ No authentication, and is prohibited in case of e-KYC
authentication.427
425 Regulation 2(p), Aadhaar (Authentication) Regulations

426 Regulation 2(l), Aadhaar (Authentication) Regulations
427 Regulation 15, Aadhaar (Authentication) Regulations
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The petitioners have contended that the points of service (PoS) biometric
readers are capable of storing biometric information. The response which
UIDAI has provided is extracted below:
“UIDAI has mandated use of Registered Devices (RD) for all

authentication requests. With Registered Devices biometric
data is signed within the device/ RD service using the
provider key to ensure it is indeed captured live. The device
provider RD Service encrypts the PID block before returning
to the host application. This RD Service encapsulates the
biometric capture, signing and encryption of biometrics all
within it. Therefore, introduction of RD in Aadhaar
authentication system rules out any possibility of use of
stored biometric and replay of biometrics captured from other
source. Requesting entities are not legally allowed to store
biometrics captured for Aadhaar authentication under
Regulation 17(1)(a) of Aadhaar (Authentication) Regulations
2016.”
226 A PID block is defined in Regulation 2(n) of Aadhaar (Authentication)
Regulations, 2016 as the Personal Identity Data element, which includes
necessary demographic and/or biometric and/or OTP collected from the
Aadhaar number holder during authentication. Regulation 17(1)(c) allows the
requesting entity to store the PID block when “it is for buffered authentication
where it may be held temporarily on the authentication device for a short
period of time, and that the same is deleted after transmission”. Thus, under
the Aadhaar project, requesting entities can hold the identity information of
individuals, even if for a temporary period.
It was further contended by the petitioners that authentication entities in the
Aadhaar architecture are capable of recording the date and time of the
authentication, the client IP, the device ID and purpose of authentication. In
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response, UIDAI stated that it does not ask requesting entities to maintain any
logs related to the IP address of the device, GPS coordinates of the device
and purpose of authentication. It was, however, admitted that in order to
ensure that their systems are secure and frauds are managed, AUAs like
banks and telecom providers may store additional information according to
their requirement to secure their system.
227 The process of sending authentication requests has been dealt with in
Regulation 9 of the Aadhaar (Authentication) Regulations. It provides that
after collecting the Aadhaar number or any other identifier provided by the
requesting entity which is mapped to the Aadhaar number and necessary
demographic and / or biometric information and/ or OTP from the Aadhaar
number holder, the client application immediately packages and encrypts the
input parameters into the PID block before transmission and sends it to the
server of the requesting entity using secure protocols. After validation, the
server of a requesting entity passes the authentication request to the CIDR,
through the server of the Authentication Service Agency. The Regulation
further provides that the authentication request must be digitally signed by the
requesting entity and/or by the Authentication Service Agency, pursuant to the
mutual agreement between them. Based on the mode of authentication
requested, the CIDR validates the input parameters against the data stored
and returns a digitally signed Yes or No authentication response, or a digitally
signed e-KYC authentication response with encrypted e-KYC data, as the
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case may be, along with other technical details related to the authentication
transaction. In all modes of authentication, the Aadhaar number is mandatory
and is submitted along with the input parameters such that authentication is
always reduced to a 1:1 match. Clause (5) of Regulation 9 provides that a
requesting entity shall ensure that encryption of PID Block takes place at the
time of capture on the authentication device according to the processes and
specifications laid down by UIDAI. Regulation 18(1) provides that a requesting
entity would maintain logs of the authentication transactions processed by it,
containing the following transaction details:
(a) the Aadhaar number against which authentication is sought;
(b) specified parameters of authentication request submitted;
(c) specified parameters received as authentication response;
(d) the record of disclosure of information to the Aadhaar number holder at the
time of authentication; and
(e) record of consent of the Aadhaar number holder for authentication.
The provision excludes retention of PID information in any case. Regulations
18(2) and 18(3) allow the retention of the logs of authentication transactions
by the requesting entity for a period of two years. Upon the expiry of two years
the logs have to be archived for a period of five years or the number of years
required by the laws or regulations governing the entity, whichever is later.
Upon the expiry of this period, the logs shall be deleted except those records
which are required to be retained by a court or for any pending disputes.
Regulation 20(1) provides that an Authentication Service Agency would
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maintain logs of the authentication transactions processed by it, containing
the following transaction details:
(a) identity of the requesting entity;
(b) parameters of authentication request submitted; and
(c) parameters received as authentication response.
The Regulation excludes retention of Aadhaar number, PID information,
device identity related data and e-KYC response data. Under Regulations
20(2) and 20(3), authentication logs shall be maintained by the ASA for a
period of two years, during which period the Authority and/or the requesting
entity may require access to such records for grievance redressal, dispute
redressal and audit in accordance with the procedure specified in the
regulations. The authentication logs shall not be used for any purpose other
than that stated. Upon the expiry of the period of two years, the authentication
logs shall be archived for a period of five years. Upon the expiry of five years
or the number of years required by the laws or regulations governing the
entity whichever is later, the authentication logs shall be deleted except those
logs which are required to be retained by a court or for pending disputes.
Section 2(d)428 of the Aadhaar Act allows storage of the record of the time of
authentication. These provisions permit the storage of logs of authentication
transactions for a specific time period.
The power-point presentation made by the CEO of UIDAI states that:
428Section 2(d) states: “authentication record” means the record of the time of authentication and identity of the
requesting entity and the response provided by the Authority
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“With registered devices every biometric device will have a

unique identifier allowing traceability, analytics and fraud
management and biometric data will be signed within the
device.”
The response further indicates that UIDAI gets the AUA code, ASA code,
unique device code, registered device code used for authentication, and that
UIDAI would know from which device the authentication has happened and
through which AUA/ASA. The response provided by the respondents states:
“UIDAI does not get any information related to the IP address

or the GPS location from where authentication is performed
as these parameters are not the part of authentication (v2.0)
and e-KYC (v2.1) API. UIDAI would only know from which
device the authentication has happened, through which
AUA/ASA etc. This is what the slides meant by traceability.
UIDAI does not receive any information about at what location
the authentication device is deployed, its IP address and its
operator and the purpose of authentication. Further, the
UIDAI or any entity under its control is statutorily barred from
collecting, keeping or maintaining any information about the
purpose of authentication under Section 32(3) of the Aadhaar
Act.”
However, Regulation 26, which deals with the storage and maintenance of
Authentication Transaction Data clearly provides that UIDAI shall store and
maintain authentication transaction data, which shall contain the following
information:
(a) authentication request data received including PID block;
(b) authentication response data sent;
(c) meta data429 related to the transaction; and
(d) any authentication server side configurations430 as necessary.
429AUA code, ASA code, unique device code, registered device code used for authentication, and that UIDAI
would know from which device the authentication has happened
430An important configuration could be IP address
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The only data, which has been excluded from retention under this provision,
like Section 32(3) of the Aadhaar Act, is the purpose of authentication.
Regulation 27 provides that the authentication transaction data shall be
retained by UIDAI for a period of six months, and will thereafter be archived
for five years, upon which, the authentication transaction data shall be deleted
except when it is required to be maintained by a court or in connection with
any pending dispute. These provisions indicate that under the Aadhaar
architecture, UIDAI stores authentication transaction data. This is in violation
of the widely recognized data minimisation principles which seek that data
collectors and processors delete personal data records when the purpose for
which it has been collected is fulfilled. The lack of specification of security
standards and the overall lack of transparency and inadequate grievance
redressal mechanism under the Aadhaar program greatly exacerbate the
overall risk associated with data retention. In the Aadhaar regime, an
Authentication User Agency (AUA) connects to the CIDR and uses Aadhaar
authentication to validate a user and enable its services. The responsibility for
the logistics of service delivery rests with the AUAs. In this federated model,
Authentication Service Agencies (ASAs) transmit authentication requests to
CIDR on behalf of one or more AUAs. However, any device that
communicates via the Internet is assigned an IP address. Using the meta-
data related to the transaction, the location of the authentication can easily be
traced using the IP address.
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228 The petitioners have also brought the attention of this Court to bear on
an expert report, with respect to security and Aadhaar, which was filed along
with an Additional Affidavit dated 09 March 2018. The report dated 4 March
2018 is titled as “Analysis of Major Concern about Aadhaar Privacy and
Security” and has been authored by Professor Manindra Agrawal. Professor
Agrawal is the N Ramarao Professor at IIT Kanpur and is a member of the
Technology and Architecture Review Board (TARB) and of the Security
Review Committee of UIDAI. Professor Agarwal’s Report deals with the notion
of differential privacy. Differential privacy makes it possible for tech entities to
collect and share aggregate information about user habits, while maintaining
the privacy of individual users. The Report states that differential privacy of a
protocol is the change in the privacy of people when the protocol is introduced
without altering any other protocol present. If the differential privacy of a
protocol is “non-negative”, the protocol does not compromise privacy in any
way. There are four existing Aadhaar databases:
(i) The ‘person database’ stores personal attributes of a person (name,
address, age, etc.) along with his/her Aadhaar number;
(ii) The reference database stores the Aadhaar number of a person along
with a unique reference number (which has no relationship with the
Aadhaar number of an individual);
(iii) The biometric database stores biometric information of a person along
with the unique reference number; and
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(iv) The verification log records all ID verifications done in the past five years.
For each verification, it stores the biometric data, Aadhaar number, and
ID of the device on which verification was done.
The report analyses the situation if any of the databases gets leaked. The
report remarks:
“Finally, let us turn attention to Verification Log. Its leakage

may affect both the security and the privacy of an individual
as one can extract identities of several people (and hence
can keep changing forged identities) and also locate the
places of transactions done by an individual in the past five
years. Note that differential privacy of this becomes negative
since without access to this database it is not possible to
track locations of an individual in past five years (as opposed
to tracking current location which is possible). Therefore,
Verification Log must be kept secure.”
The Report underlines the importance of ensuring the security of verification
logs in the Aadhaar database. The leakage of verification logs is capable of
damaging the security and privacy of individuals since the report notes that
from the verification log, it is possible to locate the places of transactions by
an individual in the past five years. A breach in verification log would allow a
third party to access the location of the transactions of an individual over the
past five years. The report indicates that it is possible through the Aadhaar
database to track the location of an individual. The Aadhaar database is
different from other databases such as PAN Card or driving license. The
Aadhaar database is universal and contains the biometrics of an individual.
The threshold to scrutinize the effects of this database is therefore much
higher as compared to that of other databases.
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229 In Puttaswamy, Justice Kaul (in his concurring judgment) emphasized
upon the concerns regarding surveillance of individuals. The learned Judge
held:
“The growth and development of technology has created new

instruments for the possible invasion of privacy by the State,
including through surveillance, profiling and data collection
and processing. Surveillance is not new, but technology has
permitted surveillance in ways that are unimaginable… One
such technique being adopted by States is ‘profiling’. The
European Union Regulation of 2016 on data privacy defines
‘Profiling’ as any form of automated processing of personal
data consisting of the use of personal data to evaluate certain
personal aspects relating to a natural person, in particular to
analyse or predict aspects concerning that natural person's
performance at work, economic situation, health, personal
preferences, interests, reliability, behaviour, location or
movements. Such profiling can result in discrimination based
on religion, ethnicity and caste.”431
Justice Kaul also dealt with the need to regulate the conduct of private entities
vis-a-vis profiling of individuals:
“The capacity of non-State actors to invade the home and

privacy has also been enhanced. Technological development
has facilitated journalism that is more intrusive than ever
before…432
…[I]n this digital age, individuals are constantly generating
valuable data which can be used by non-State actors to track
their moves, choices and preferences. Data is generated not
just by active sharing of information, but also passively…
These digital footprints and extensive data can be analyzed
computationally to reveal patterns, trends, and associations,
especially relating to human behavior and interactions and
hence, is valuable information. This is the age of ‘big data’.
The advancement in technology has created not just new
forms of data, but also new methods of analysing the data
and has led to the discovery of new uses for data. The
algorithms are more effective and the computational power
has magnified exponentially.”433
431 Puttaswamy at para 585

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230 Section 2(c) of the Aadhaar Act is capable of revealing the identity of an
individual to UIDAI. Section 2(d) permits storage of record of the time of
authentication. Through meta data and in the light of the observations made in
the Professor Manindra Agarwal Report, it can easily be concluded that it is
possible through the UIDAI database to track the location of an individual.
Further, the verification logs reveal the details of transactions over the past
five years. The verification logs are capable of profiling an individual. Details
of the transaction include what the transaction was (whether authentication
request was accepted/rejected), where it was sent from, and how it was sent.
The only thing not stored in the transaction is its purpose.
231 The threat to privacy arises not from the positive identification that
biometrics provide, but the ability of third parties to access this in an
identifiable form and link it to other information, resulting in secondary use of
that information without the consent of the data subject. This erodes the
personal control of an individual over the uses of his or her information. The
unauthorised secondary use of biometric data is perhaps the greatest risk that
biometric technology poses to informational privacy.434 The Manindra Agarwal
Report acknowledges that the biometric database in the CIDR is accessible
by third-party vendors providing biometric search and de-duplication
algorithms. The other three databases are stored, in encrypted form, by
UIDAI.
434Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013) at page
76
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In this regard, it would be necessary to deal with the Contract (dated 24
August 2010) signed between UIDAI and L1 Identity Solutions (the foreign
entity which provided the source code for biometric storage). It has been
submitted by the petitioners that the contract gives L1 Identity Solutions free
access to all personal information about all residents in India. The contract
specifies that UIDAI (‘the purchaser’) has the right in perpetuity to use all
original newly created processes “identified” by M/S L-1 Identity Solutions
“solely during execution” of the contract to the purchaser’s unique
specifications and which do not contain any pre-existing intellectual property
right belonging to L-1 Identity Solutions.435 UIDAI was provided the license of
the software (proprietary algorithms) developed by L-1 Identity Solutions.
However, it has been clarified in the Contract that:
“The Contract and the licenses granted herein are not a sale
of a copy of the software and do not render Purchaser the
owner of M/S L-1 Identity Solutions Operating Company’s
proprietary ABIS and SDK software.”436
The Contract authorises L-1 Identity Solutions to retain proprietary ownership
of all intellectual property rights in and to goods, services and other
deliverables to the purchaser under the Contract that are modifications or
derivative works to their pre-existing technologies, software, goods, services
and other works. If a modification or derivative work made by L-1 Identity
Solutions or its consortium members contains unique confidential information
of the purchaser, then, the contract provides that the former shall not further
435 Clause 13.1 of the Contract

436 Ibid
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PART H
license or distribute such modification or derivative to any other customer or
third party other than the purchaser without the purchaser’s prior written
permission.437 Clause 13.3 provides:
“M/S L-1 Identity Solutions Operating Company/ The team of

M/S L-1 Identity Solutions Operating Company shall ensure
that while it uses any software, hardware, processes,
document or material in the course of performing the
Services, it does not infringe the Intellectual Property Rights
of any person and M/S L-1 Identity Solutions Operating
Company shall keep the Purchaser indemnified against all
costs, expenses and liabilities howsoever, arising out any
illegal or unauthorized use (piracy) or in connections with any
claim or proceedings relating to any breach or violation of any
permission/license terms or infringement of any Intellectual
Property Rights by M/S L-1 Identity Solutions Operating
Company or the team of M/S L-1 Identity Solutions Operating
Company during the course of performance of the Services.
In case of infringement by M/S L-1 Identity Solutions
Operating Company/ The team of M/S L-1 Identity Solutions
Operating Company, M/S L-1 Identity Solutions Operating
Company shall have sole control of the defense and all
related settlement negotiations.”
Clause 13.4 deals with information privacy. It provides:
“M/S L-1 Identity Solutions Operating Company/ The team of

M/S L-1 Identity Solutions Operating Company shall not carry
any written/printed document, layout diagrams, floppy
diskettes, hard disk, storage tapes, other storage devices or
any other goods/material proprietary to Purchaser into/out of
Datacenter Sites and UIDAI Locations without written
permission from the Purchaser.”
Clause 15, titled as “data and hardware”, provides:
“15.1 By virtue of this Contract, M/s L-1 Identity Solutions

Operating Company/The team of M/s L-1 Identity Solutions
Operating Company may have access to personal information
of the Purchaser [UIDAI] and/or a third party or any resident
of India, any other person covered within the ambit of any
legislation as may be applicable. The purchaser shall have
the sole ownership of and the right to use all such data in
437 Ibid
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perpetuity including any data or other information pertaining

to the residents of India that may be in the possession of M/s
L-1 Identity Solutions Operating Company or the Tram of M/s
L-1 Identity Solutions Operating Company in the course of
performing.
15.2 The purchaser shall have the sole ownership of and the
right to use, proprietary Biometric templates of residents of
India as created and maintained by M/S L-1 Identity Solutions
Operating Company in the course of performing the Services
under this Contract. In the event of termination or expiry of
contract, M/S L-1 Identity Solutions Operating Company shall
transfer all the proprietary templates to UIDAI in an electronic
storage media in a form that is freely retrievable for reference
and usage in future.
15.3 The Data shall be retained by M/S L-1 Identity Solutions
Operating Company not more than a period of 7 years as per
Retention Policy of Government of India or any other policy
that UIDAI may adopt in future.”
Under the Contract, L-1 Identity Solutions retains the ownership of the
biometric software. UIDAI has been given only the license to use the software.
Neither the Central Government nor the UIDAI have the source code for the
de-duplication technology which is at the heart of the programme. The source
code belongs to a foreign corporation. UIDAI is merely a licensee. It has also
been provided that L-1 Identity Solutions can be given access to the database
of UIDAI and the personal information of any individual.
232 This Court in Puttaswamy had emphasized on the centrality of consent
in protection of data privacy:
“307…Apart from safeguarding privacy, data protection

regimes seek to protect the autonomy of the individual. This is
evident from the emphasis in the European data protection
regime on the centrality of consent. Related to the issue of
consent is the requirement of transparency which requires a
disclosure by the data recipient of information pertaining to
data transfer and use.”
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Prior to the enactment of the Aadhaar Act, an individual had no right of
informed consent. Without the consent of individual citizens, UIDAI contracted
with L-1 Identity Solutions to provide any information to it for the performance
of the Contract. It has been provided in the Contract that L-1 Identity Solutions
would indemnify UIDAI against any loss caused to it. However, the leakage of
sensitive personal information of 1.2 billion citizens, cannot be remedied by a
mere contractual indemnity. The loss of data is irretrievable. In a digital
society, an individual has the right to protect herself by maintaining control
over personal information. The protection of data of 1.2 billion citizens is a
question of national security and cannot be indemnified by a Contract.
233 Mr Shyam Divan, learned senior counsel for the petitioners, has also
drawn the attention of this Court to the Memorandum of Understanding (MoU)
signed between UIDAI and various entities for carrying out the process of
enrolment. Before the enactment of the Aadhaar Act, UIDAI existed as an
executive authority, under the erstwhile Planning Commission and then under
the Union Ministry of Communications and Information Technology. Mr. Divan
has argued that the activities of the private parties engaged in the process of
enrolment had no statutory or legal backing. It was his contention that MOUs
signed between UIDAI and Registrars are not contracts within the purview of
Article 299 of the Constitution, and therefore, do not cover the acts done by
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the private entities engaged by the Registrars for enrolment. In Monnet Ispat
and Energy Ltd v Union of India438, this Court had held:
“290. What the appellants are seeking is in a way some kind

of a specific performance when there is no concluded
contract between the parties. An MOU is not a contract, and
not in any case within the meaning of Article 299 of the
Constitution of India.”439
The MoUs entered into by UIDAI do not fall within the meaning of Article 299
of the Constitution. There is no privity of contract between UIDAI and the
Enrolling agencies.
234 This Court held in Puttaswamy that any law which infringes the right to
privacy of an individual needs to have stringent inbuilt safeguards against the
abuse of the process. The Aadhaar Act envisages UIDAI as the sole authority
for the purpose of the Act. It entrusts UIDAI with a wide canvass of functions,
both administrative and adjudicatory. It performs the functions of appointing
enrolling agencies, registrars and requesting entities. Currently, there are 212
Registrars and 755 enrolling agencies in different states of the country. 440
Monitoring the actions of so many entities is not a task easily done.
Responsibility has also been placed on UIDAI to manage and secure the
central database of identity information of individuals. UIDAI is also required
to ensure that data stored in CIDR is kept secure and confidential. It has been
placed with the responsibility for the protection of the identity information of
1.2 billion citizens. UIDAI is entrusted with discretionary powers under the
438 (2012) 11 SCC 1
440 As submitted by Mr Rakesh Dwivedi, learned senior counsel for the State of Gujarat
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architecture of Aadhaar, including the discretion to share the personal
information of any individual with the biometric service providers (BSPs) for
the performance of contracts with them.
235 The proviso to Section 28(5) provides only for a request to UIDAI for
access to information and does not make access to information a right of the
individual. This would mean that it would be entirely upon the discretion of the
UIDAI to refuse to grant access to the information once a request has been
made. It is also not clear how a person is supposed to know that the biometric
information contained in the database has changed if he/she does not have
access to it. UIDAI is also empowered to investigate any breach under the
Act, as a result of which any offence under the Act will be cognizable only if a
complaint is filed by UIDAI. UIDAI is not an independent monitoring agency.
Under the Aadhaar architecture, UIDAI is the only authority which carries out
all the functions, be it administrative, adjudicatory, investigative, or monitoring
of the project. While the Act confers such major functions on UIDAI, it does
not place any institutional accountability upon UIDAI to protect the database
of citizens’ personal information. The Act is silent on the liability of UIDAI and
its personnel in case of non-compliance of the provisions of the Act or the
regulations made under it. Under Section 23(2)(s) of the Act, UIDAI is
required to establish a grievance redressal mechanism. Making the authority
administering a project, also responsible for providing for the framework to
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PART H
address grievances arising from the project, severely compromises the
independence of the grievance redressal body.441 Section 47 of the Act
violates the right to seek remedy. Under Section 47(1), a court can take
cognizance of an offence punishable under the Act only on a complaint made
by UIDAI or any officer or person authorised by it. There is no grievance
redressal mechanism if any breach or offence is committed by UIDAI itself.
The law must specify who is to be held accountable. The Act lacks a
mechanism through which any individual can seek speedy redressal for
his/her data leakage and identity theft. Compensation must be provided for
any loss of data of an individual. A stringent and independent redressal
mechanism and options for compensation must be incorporated in the law.
Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek
efficacious remedies for violation of their right to privacy. Whether it is against
UIDAI or a private entity, it is critical that the individual retains the right to seek
compensation and justice. This would require a carefully designed
structure.442
236 An independent and autonomous authority is needed to monitor the
compliance of the provisions of any statute, which infringes the privacy of an
individual. A fair data protection regime requires establishment of an
independent authority to deal with the contraventions of the data protection
framework as well as to proactively supervise its compliance. The

441 The Centre for Internet & Society, Salient Points in the Aadhaar Bill and Concerns, available at https://cis-
india.org/internet-governance/salient-points-in-the-aadhaar-bill-and-concerns.
442Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at pages 226-
227
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PART H
independent monitoring authority must be required to prescribe the standards
against which compliance with the data protection norms is to be measured. It
has to independently adjudicate upon disputes in relation to the contravention
of the law. Data protection requires a strong regulatory framework to protect
the basic rights of individuals. The architecture of Aadhaar ought to have, but
has failed to embody within the law the establishment of an independent
monitoring authority (with a hierarchy of regulators), along with the broad
principles for data protection.443 The principles should include that the means
of collection of data are fair and lawful, the purpose and relevance is clearly
defined, user limitations accompanied by intelligible consent requirements are
specified and subject to safeguards against risks such as loss, unauthorised
access, modification and disclosure.444 The independent authority needs to be
answerable to Parliament. In the absence of a regulatory framework which
provides robust safeguards for data protection, the Aadhaar Act does not
pass muster against a challenge on the ground of Article 14. The law fails to
meet the norms expected of a data protection regime which safeguards the
data of 1.2 billion Indians. The absence of a regulatory framework leaves the
law vulnerable to challenge on the ground that it has failed to meet the
requirements of fair institutional governance under the rule of law.
237 The scheme of the Aadhaar Act is postulated on the norms enunciated
in Chapter VI for the protection of information and their enforcement under a

443Subhashis Banerjee, Architecture for privacy, The Indian Express (5 May 2018), available at
https://indianexpress.com/article/opinion/columns/architecture-for-privacy-data-protection-facebook-india-
united-states-5163819/
444 Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226
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PART H
regime of criminal offences and penalties under Chapter VII. Providing a
regime under law for penalizing criminal wrongdoing is necessary. But,
criminal offences are not a panacea for a robust regulatory framework under
the auspices of an autonomous regulatory body. Violations in regard to the
integrity of data may be incremental. Millions of data transactions take place in
the daily lives of a community of individuals. Violations in regard to the
integrity of data are numerous. Some of them may appear to be trivial, if
looked at in isolation. However, cumulatively, these violations seriously
encroach on the dignity and autonomy of the individual. A regime of criminal
law may not in itself be adequate to deal with all these violations in terms of
their volume and complexity. It is hence necessary that the criminal law must
be supplemented by an independent regulatory framework. In its absence,
there is a grave danger that the regime of data protection, as well as the
administration of criminal justice will be rendered dysfunctional. Unfortunately,
a regulatory framework of the nature referred to above is completely absent.
UIDAI which is established and controlled by the Union Government
possesses neither the autonomy nor the regulatory authority to enforce the
mandate of the law in regard to the protection of data. The absence of a
regulatory framework renders the legislation largely ineffective in dealing with
data violations. Data protection cannot be left to an unregulated market place.
Nor can the law rest in the fond hope that organized structures within or
outside government will be self-compliant. The Aadhaar Act has manifestly
failed in its legislative design to establish and enforce an autonomous
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regulatory mechanism. Absent such a mechanism, the state has failed to fulfil
the obligation cast upon it to protect the individual right to informational self-
determination.
238 Section 33(2), which permits disclosure of identity information and
authentication records in the interest of national security, specifies a
procedure for oversight by a committee. However, no substantive provisions
have been laid down as guiding principles for the oversight mechanism such
as the principle of data minimisation.
239 Privacy concerns relating to the Aadhaar project have been the subject
of wide ranging deliberation. Biometric data offers strong evidence of one’s
identity since it represents relatively unique biological characteristics which
distinguish one person from another. As biometric data can be usually linked
to only one individual it acts as a powerful, unique identifier that brings
together disparate pieces of personal information about an individual. As a
relatively unique identifier, biometric data not only allows individuals to be
tracked, but it also creates the potential for the collection of an individual’s
information and its incorporation into a comprehensive profile. Central
databases, data matching/linking and profiling are technical factors that
facilitate ‘function creep’ (the slippery slope according to which information
can be used for functions other than that for which it was collected). Privacy
advocates believe that any identification scheme can be carried out with a
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PART H
hidden agenda and that the slippery slope effect can be relevant to several
factors such as motivations of governments and business, and on the
existence of safeguards. The special nature of biometric data makes function
creep more likely and even attractive. The legal measures possible to control
function creep are still limited. However, there are several ways in which
function creep can be curtailed. They include (i) limiting the amount of data
that is collected for any stated purpose; (ii) enabling regulation to limit
technological access to the system; (iii) concerted debates with all
stakeholders and public participation; (iv) dispersion of multiple enablers for a
system; and (v) enabling choices for user participation.
240 This Court held in Puttaswamy that a reasonable expectation of
privacy requires that data collection must not violate the autonomy of an
individual. The Court has held consent, transparency, and control over
information as the cornerstones over which the fundamentals of informational
privacy stand. The Court had made it clear that an individual has the right to
prevent others from using his or her image, name and other aspects of
personal life and identity for commercial purposes without consent. An
Aadhaar number is a unique attribute of an individual. It embodies unique
information associated with an individual. The manner in which it is to be used
has to be dependent on the consent of the individual.
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241 Section 57 of the Aadhaar Act allows the use of an Aadhaar number for
establishing the identity of an individual “for any purpose” by the state, private
entities and persons. Allowing private entities to use Aadhaar numbers will
lead to commercial exploitation of an individual’s personal data without his/her
consent and could lead to individual profiling. The contention is that Section
57 fails to meet the requirements set out in the Puttaswamy judgment.
In this regard, reference must be drawn to a 2010 policy paper. A group of
officers was created by the Government of India to develop a framework for a
privacy legislation that would balance the need for privacy protection with
security and sectoral interests, and respond to the need for domain legislation
on the subject. An approach paper for the legal framework for a proposed
legislation on privacy was prepared by the group and was uploaded on the
website of the Government of India. The paper noted the repercussions of
having a project based on a database of unique individual IDs:
“Data privacy and the need to protect personal information is

almost never a concern when data is stored in a
decentralized manner. However, all this is likely to change
with the implementation of the UID Project. One of the
inevitable consequences of the UID Project will be that the
UID Number will unify multiple databases. As more and more
agencies of the government sign on to the UID Project, the
UID Number will become the common thread that links all
those databases together. Over time, private enterprise could
also adopt the UID Number as an identifier for the purposes
of the delivery of their services or even for enrolment as a
customer...Once this happens, the separation of data that
currently exists between multiple databases will vanish…
Such a vast interlinked public information database is

unprecedented in India. It is imperative that appropriate steps
be taken to protect personal data before the vast government
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storehouses of private data are linked up and the threat of

data security breach becomes real.”445
The Paper highlighted the potential of exploitation that the UID project
possessed. The potential was that the UID data could be used directly or
indirectly by market forces for commercial exploitation as well as for intrusions
by the State into citizens’ privacy. The Paper contained an incisive
observation in regard to the exploitation of citizens’ data by private entities:
“Similarly, the private sector entities such as banks, telecom

companies, hospitals etc are collecting vast amount of private
or personal information about individuals. There is
tremendous scope for both commercial exploitation of this
information without the consent/ knowledge of the individual
consent and also for embarrassing an individual whose
personal particulars can be made public by any of these
private entities. The IT Act does provide some safeguards
against disclosure of data / information stored electronically,
but there is no legislation for protecting the privacy of
individuals for all information that may be available with
private entities
In view of the above, privacy of individual is to be protected
both with reference to the actions of Government as well as
private sector entities.”446
The Paper highlighted the need for a stringent privacy protection mechanism,
which could prevent individual data from commercial exploitation as well as
individual profiling.
242 Reference must also be drawn to Chapter V of the National
Identification Authority of India Bill, 2010, which provided for the constitution of
445Government of India, Approach Paper for a Legislation on Privacy (2010), available at

http://www.prsindia.org/uploads/media/UID/aproach_paper.pdf
446 Ibid
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PART H
an Identity Review Committee. The proposed Committee was to be entrusted
to carry out the function of ascertaining the extent and pattern of usage of
Aadhaar numbers across the country. The Committee was required to prepare
a report annually in relation to the extent and pattern of usage of the Aadhaar
numbers along with its recommendations thereon and submit it to the Central
Government. The idea behind the establishment of such a Committee was to
limit the extent to which Aadhaar numbers could be used. These provisions
have not been included in the Aadhaar Act, 2016. Instead, the Act allows the
use of Aadhaar number for any purpose by the State as well as private
entities. This is a clear case of overbreadth and an instance of manifest
arbitrariness.
243 Section 57 indicates that the legislature has travelled far beyond its
stated object of ensuring targeted delivery of social welfare benefits. Allowing
the Aadhaar platform for use by private entities overreaches the purpose of
enacting the law. It leaves bare the commercial exploitation of citizens data
even in purported exercise of contractual clauses. This will result in a violation
of privacy and profiling of citizens.
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An article titled “Privacy and Security of Aadhaar: A Computer Science
Perspective”447 underlines the risk of profiling and identification that is
possible by the use of Aadhaar numbers. It states:
“The Aadhaar number is at the heart of the Aadhaar scheme

and is one of the biggest causes of concern. Recall that the
Aadhaar number is a single unique identifier that must
function across multiple domains. Given that the Aadhaar
number must necessarily be disclosed for obtaining services,
it becomes publicly available, not only electronically but also
often in human readable forms as well, thereby increasing the
risk that service providers and other interested parties may be
able to profile users across multiple service domains. Once
the Aadhaar number of an individual is (inevitably) known,
that individual may be identified without consent across
domains, leading to multiple breaches in privacy.”
244 The risks which the use of Aadhaar “for any purpose” carries is that
when it is linked with different databases (managed by the State or by private
entities), the Aadhaar number becomes the central unifying feature that
connects the cell phone with geo-location data, one’s presence and
movement with a bank account and income tax returns, food and lifestyle
consumption with medical records. This starts a “causal link” between
information which was usually unconnected and was considered trivial. 448
Thus, linking Aadhaar with different databases carries the potential of being
profiled into a system, which could be used for commercial purposes. It also
carries the capability of influencing the behavioural patterns of individuals, by
affecting their privacy and liberty. Profiling individuals could be used to create
co-relations between human lives, which are generally unconnected. If the
447 Shweta Agrawal, Subhashis Banerjee, and Subodh Sharma, Privacy and Security of Aadhaar: A Computer
Science Perspective, Economic & Political Weekly (16 September 2017), Vol. 52, available at
https://www.epw.in/journal/2017/37/special-articles/privacy-and-security-aadhaar.html
448 Nishant Shah, Digital Native: Cause an effect, The Indian Express (17 June 2018), available at
https://indianexpress.com/article/technology/social/digital-native-cause-an-effect-5219977/
336
PART H
traces of Aadhaar number are left in every facet of human life, it will lead to a
loss of privacy. The repercussions of profiling individuals were anticipated in
1966 by Alexander Solzhenitsyn in ‘Cancer Ward’449. His views are prescient
to our age:
“As every man goes through life he fills in a number of forms

for the record, each containing a number of questions. A
man’s answer to one question on one form becomes a little
thread, permanently connecting him to the local centre of
personnel records administration. There are thus hundreds of
little threads radiating from every man, millions of threads in
all. If these threads were suddenly to become visible, the
whole sky would look like a spider’s web, and if they
materialised as elastic bands, buses, trams and even people
would all lose the ability to move, and the wind would be
unable to carry torn newspapers or autumn leaves along the
streets of the city. They are not visible, they are not material,
but every man is constantly aware of their existence… Each
man, permanently aware of his own invisible threads,
naturally develops a respect for the people who manipulate
the threads…”
The invisible threads of a society networked on biometric data have grave
portents for the future. Unless the law mandates an effective data protection
framework, the quest for liberty and dignity would be as ephemeral as the
wind.
245 A novelist’s vision is threatening to become a reality in our times.
Profiling can impact individuals and their behaviour. Since data collection
records the preferences of an individual based on the entities which requested
for proof of identity, any such pattern in itself is crucial data that could be used
to predict the emergence of future choices and preferences of individuals.
449 Aleksandr Solzhenitsyn, Cancer Ward, The Bodley Head (1968)
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These preferences could also be used to influence the decision making of the
electorate in choosing candidates for electoral offices. Such a practice would
be unhealthy for the working of a democracy, where a citizen is deprived of
free choice. In the modern digital era, privacy protection does not demand that
data should not be collected, stored, or used, but that there should be
provable guarantees that the data cannot be used for any purpose other than
those that have been approved. In any of the programmes employed, it is
imperative that the state takes strong data privacy measures to prevent theft
and abuse. Moreover, it must be realized that an identification system like
Aadhaar, which is implemented nationwide, will always be more prone to
external threats. The State is always open to threat from its adversaries, and
a national level identification system can become an easy target for anyone
looking to cause serious damage as individuals’ biometric credentials are at
risk in the process. Therefore, it is vital that state action ascertain security
vulnerabilities while developing an identification system. These issues have
not been dealt with by the Aadhaar Act. There is currently limited legislative or
other regulatory guidance to specify whether private or public organisations
are prevented from sharing or selling biometric information to others. Section
57 cannot be applied to permit commercial exploitation of the data of
individuals or to affect their behavioural patterns. Section 57 does not pass
constitutional muster. It is manifestly arbitrary, suffers from overbreadth and
violates Article 14.
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246 At its core, the Aadhaar Act attempts to create a method for
identification of individuals so as to provide services, subsidies and other
benefits to them. The Preamble of the Act explains that the architecture of the
Act seeks to provide “efficient, transparent and targeted delivery of subsidies,
benefits and services” for which the expenditure is incurred from the
Consolidated Fund to resident individuals. Section 7 of the Act makes the
proof of possession of Aadhaar number or Aadhaar authentication as a
mandatory condition for receipt of a subsidy, benefit or service, which incurs
expenditure from the Consolidated Fund of India. The scope of Section 7 is
very wide. It leaves the door open for the government to route more benefits,
subsidies and services through the Consolidated Fund of India and expand
the scope of Aadhaar. Any activity of the government paid for from the
Consolidated Fund of India ranging from supply of subsidised grains and
LPG, to use of roads and civic amenities, healthcare, and even rebates to tax
payers could come under such an umbrella. The scope of Section 7 could
cover every basic aspect of the lives of citizens. The marginalized sections of
society, who largely depend upon government’s social security schemes and
other welfare programmes for survival could be denied basic living conditions
because of a mismatch in biometric algorithms. The notifications issued by
government under Section 7 of the Act, which require mandatory proof of
possession of an Aadhaar number or requiring authentication, cover 252
schemes, including schemes for children (such as benefits under the Sarva
Shiksha Abhiyan or getting meals under the Mid-day meal scheme, painting
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and essay competitions for children, scholarships on merit), schemes relating
to rehabilitation of bonded labour and human trafficking, scholarship schemes
for SC/ST students, universal access to tuberculosis care, pensions, schemes
relating to labour and employment, skill development, personnel and training,
agriculture and farmers’ welfare, primary and higher education, social justice,
benefits for persons with disabilities, women and child development, rural
development, food distribution, healthcare, panchayati raj, chemicals &
fertilizers, water resources, petroleum and natural gas, science and
technology, sanitation, textiles, urban development, minority affairs, road
transport, culture, tourism, urban housing, tribal affairs and stipends for
internship for students. The list is ever expanding and is endless. These
notifications cover a large number of facilities provided by the government to
its citizens. Every conceivable facility can be brought under the rubric of
Section 7. From delivery to deliverance, almost every aspect of the cycle of
life would be governed by the logic of Aadhaar.
247 When Aadhaar is seeded into every database, it becomes a bridge
across discreet data silos, which allows anyone with access to this information
to re-construct a profile of an individual’s life. It must be noted while Section
2(k) of the Aadhaar Act excludes storage of individual information related to
race, religion, caste, tribe, ethnicity, language, income or medical history into
CIDR, the mandatory linking of Aadhaar with various schemes allows the
same result in effect. For instance, when an individual from a particular caste
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engaged in manual scavenging is rescued and in order to take benefit of
rehabilitation schemes, she/he has to link the Aadhaar number with the
scheme, the effect is that a profile as that of a person engaged in manual
scavenging is created in the scheme database. The stigma of being a manual
scavenger gets permanently fixed to her/his identity. What the Aadhaar Act
seeks to exclude specifically is done in effect by the mandatory linking of
Aadhaar numbers with different databases, under cover of the delivery of
benefits and services.
Moreover, the absence of proof of an Aadhaar number would render a
resident non-existent in the eyes of the State, and would deny basic facilities
to such residents. Section 7 thus makes a direct impact on the lives of
citizens. If the requirement of Aadhaar is made mandatory for every benefit or
service which the government provides, it is impossible to live in
contemporary India without Aadhaar. It suffers from the vice of being
overbroad. The scope of subsidies provided by the government (which incur
expenditure from the Consolidated Fund) is not the same as that of other
benefits and services which the government provides to its citizens.
Therefore, benefits and services cannot be measured with the same yardstick
as subsidies. The inclusion of services and benefits in Section 7 is a pre-
cursor to the kind of function creep which is inconsistent with privacy and
informational self-determination. The broad definitions of the expressions
‘services and ‘benefits’ would enable government to regulate almost every
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facet of its engagement with citizens under the Aadhaar platform. Section 7
suffers from clear overbreadth in its uncanalised application to services and
benefits.
248 The open-ended nature of the provisions of Section 7 is apparent from
the definition of ‘benefit’ in Section 2(f) and of ‘service’ in Section 2(w).
‘Benefit’ is defined to mean any advantage, gift, reward, relief or payment in
cash or kind provided to an individual or a group of individuals. ‘Service’ is
defined to mean any provision, facility, utility, or any other assistance provided
in any form to an individual or a group of individuals. These are broad and
unstructured terms under which the government can cover the entire gamut of
its activities involving an interface with the citizen. The provision has made no
requirement to determine whether in the first place biometric identification is
necessary in each case and whether a less intrusive modality should suffice.
Both the definitions include such other services as may be notified by the
Central government. The residuary clause is vague and ambiguous and
leaves it to the Central government at its uncharted discretion to expand on
what benefits and services would be covered by the legislation. The manner
in which these definitions have been expansively applied to cover a wide
range of activities is attributable to the vagueness implicit in Section 7.
Can the provisions of Section 7 be applied with any justification to pensions
payable on account of the past service rendered by a person to the state?
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Pension, it is well settled, is not a largesse or bounty conferred by the state.
Pension, as a condition of service, attaches as a recompense for the long
years of service rendered by an individual to the state and its instrumentalities.
Pensioners grow older with passing age. Many of them suffer from the
tribulations of old age including the loss of biometrics. It is unfair and arbitrary
on the part of the state to deny pension to a person entitled to it by linking
pensionary payments to the possession of an Aadhaar number or to its
authentication. A right cannot be denied on the anvil of requiring one and only
one means of identification. The pension disbursing authority is entitled to lay
down regulations (which are generally speaking, already in place) to ensure
the disbursal of pension to the person who is rightfully entitled. This aim of the
government can be fulfilled by other less intrusive measures. The requirement
of insisting on an Aadhaar number for the payment of pensionary benefits
involves a breach of the principle of proportionality. Such a requirement would
clearly be contrary to the mandate of Article 14.
Similarly, the state as a part of its welfare obligations provides numerous
benefits to school going children, including mid-day meals or scholarships, to
children belonging to the marginalised segments of the society. Should the
disbursal of these benefits be made to depend upon a young child obtaining
an Aadhaar number or undergoing the process of authentication? The object
of the state is to ensure that the benefits which it offers are being availed of by
genuine students who are entitled to them. This legitimate aim can be fulfilled
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by adopting less intrusive measures as opposed to the mandatory
enforcement of the Aadhaar scheme as the sole repository of identification.
The state has failed to demonstrate that a less intrusive measure other than
biometric authentication will not subserve its purposes. That the state has
been able to insist on adherence to the Aadhaar scheme without exception is
a result of the overbreadth of Section 7. Consequently, the inclusion of
benefits and services in Section 7 suffers from a patent ambiguity, vagueness
and overbreadth which renders the inclusion of services and benefits arbitrary
and violative of Article 14.
249 Various entities are involved in the Aadhaar project. Their inter-
dependencies require a greater onus to be put on them so as to match
privacy and security requirements. The architecture of Aadhaar treats
individuals as data. However, the core must be about personhood. The
architecture of Aadhaar is destroyed by a lack of transparency, accountability
and limitations. Safeguards for protection of individual rights ought to have
been explicitly guaranteed by design and default.450 The presence of
accountability and transparency within the Aadhaar architecture ought to be a
necessary requirement so as to overcome the fear of the loss of privacy and
liberty. Without these safeguards, the legislation and its architecture cannot
pass muster under proportionality.
450 Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226
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It is also important to highlight that identity is a vital facet of personality and
hence of the right to life under Article 21 of the Constitution. Identity is
essential and inalienable to human relationships and in the dealings of an
individual with the State. The notion that individuals possess only one, or at
the least, a dominant identity is not sound constitutional principle. The
Constitution has been adopted for a nation of plural cultures. It is accepting of
diversity in every walk of life. Diversity of identity is an expression of the
plurality which constitutes the essence of our social culture. Amartya Sen in
‘The Argumentative Indian’451 demonstrates the untenability of the notion
that identity is exclusive. He rejects the notion of an exclusive identity as
“preposterous”, observing that in different settings, individuals rely upon and
assert varying identities:
“Each of us invokes identities of various kinds in disparate

contexts. The same person can be of Indian origin, a Parsee,
a French citizen, a US resident, a woman, a poet, a
vegetarian, an anthropologist, a university professor, a
Christian, a bird watcher, and an avid believer in extra-
terrestrial life and of the propensity of alien creatures to ride
around the cosmos in multicoloured UFOs. Each of these
collectivities, to all of which this person belongs, gives him or
her a particular identity. They can all have relevance,
depending on the context.”452
Sen’s logic, drawn from how individuals express their personalities in the real
world, has a strong constitutional foundation. In the protection which it grants
to a diverse set of liberties and freedoms, the Constitution allows for the
assertion of different identities. The exercise of each freedom may generate a
distinct identity. Combinations of freedoms are compatible with composite

451 Amartya Sen, The Argumentative Indian, Penguin (2005), at page 350
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identities. Sen also rejects the notion that individuals “discover their identities
with little room for choice”. The support for such a notion, as he observes,
comes from communitarian philosophy, according to which identity precedes
choice:
“As Professor Michael Sandel has explained this claim

(among other communitarian claims) : ‘community describes
not just what they have as fellow citizens but also what they
are, not a relationship they choose (as in a voluntary
association) but an attachment they discover, not merely an
attribute but a constituent of their identity In this view, identity
comes before reasoning and choice.”453
Sen rejects the above idea on the ground that it does not reflect a universally
valid principle. Undoubtedly, some identities are ‘given’. But even here, as
Sen explains, the issue is not whether an identity can be selected by an
individual in all cases but whether the individual has a choice over the relative
weight to be ascribed to different identities:
“The point at issue is not whether any identity whatever can

be chosen (that would be an absurd claim), but whether we
have choices over alternative identities or combinations of
identities, and perhaps more importantly, whether we have
some freedom in deciding what priority to give to the various
identities that we may simultaneously have. People’s choices
may be constrained by the recognition that they are, say,
Jewish or Muslim, but there is still a decision to be made by
them regarding what importance they give to that particular
identity over others that they may also have (related, for
example, to their political beliefs, sense of nationality,
humanitarian commitments or professional attachments).”454
Sen reasons that identity is a plural concept and the relevance of different
identities depends on the contexts in which they are asserted:

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“Identity is thus a quintessentially plural concept, with varying

relevance of different identities in distinct contexts. And, most
importantly, we have choice over what significance to attach
to our different identities. There is no escape from reasoning
just because the notion of identity has been invoked. Choices
over identities do involve constraints and connections, but the
choices that exist and have to be made are real, not illusory.
In particular, the choice of priorities between different
identities, including what relative weights to attach to their
respective demands, cannot be only a matter of discovery.
They are inescapably decisional, and demand reason-not just
recognition.”455
250 The Constitution recognizes, through the rights which it protects, a
multitude of identities and the myriad forms of its expression. Our political
identities as citizens define our relationship with the nation state. The rights
which the Constitution recognizes as fundamental liberties constitute a
reflection of the identity of the self. As we speak, so we profess who we are.
An artist who paints, the writer who shares a thought, the musician who
composes, the preacher who influences our spirituality and the demagogue
who launches into human sensibilities are all participants in the assertion of
identity. In this participative process, the identities of both the performer and
the audience are continuously engaged. Identity at a constitutional level is
reflected in the entitlement of every individual, protected by its values, to lead
a way of life which defines the uniqueness of our beings. The Constitution
recognizes a multitude of identities, based on the liberties which it recognizes
as an inseparable part of our beings. To be human is to have a multitude of
identities and be guaranteed the right to express it in various forms. The state
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PART H
which must abide by a written Constitution cannot require any person to
forsake one or more identities. Constitutional freedoms compel the state to
respect them.
251 Technologies that affect how our identities function must be subject to
constitutional norms. The existence of individual identity is the core of a
constitutional democracy. Addressing the Constituent Assembly on 4th
November 1948, Dr B.R. Ambedkar had emphasised on the importance of
individual identity in our constitutional framework:
“I am glad that the Draft Constitution has… adopted the

individual as its unit.”456
Having an individual identity is an important part of the human condition. The
negation of identity is the loss of personhood, which in turn affects the
freedom of choice and free will. Personhood constructs democracy. It
represents the quality of democracy. Our decided cases have recognized the
intimate relationship between human liberty and identity. The traveller in
Maneka Gandhi v Union of India457, the employee complaining of sexual
harassment in Vishaka v State of Rajasthan458, the guardian of the minor in
Githa Hariharan (Ms) v Reserve Bank of India459, the bar employee in Anuj
Garg v Hotel Association of India460, the transgender in National Legal
456 Constituent Assembly Debates (4 November, 1948)

457 (1978) 1 SCC 248
458 (1997) 6 SCC 241
459 (1999) 2 SCC 228
460 (2008) 3 SCC 1
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PART H
Services Authority v Union of India461, the tribal worker in Madhu Kishwar
v State of Bihar462 and the oppressed victim of state violence in Nandini
Sundar v State of Chattisgarh463 are all engaged in the assertion of identity.
Puttaswamy recognizes the role of the individual as “the core of constitutional
focus” and “the focal point of the Constitution”. Justice Kaul’s concurring
opinion recognised that the individual has the right to control her identity.464
It was submitted by the petitioners that a unique identity number infringes the
identity of the individual since it reduces every resident to a number.
Ascribing to the holder of an Aadhaar card, a unique identity number must not
infringe constitutional identities. The Aadhaar Act indicates, in its Statement
of Objects and Reasons, that correct identification of targeted beneficiaries is
necessary and that a failure to establish the identity of an individual is a major
hindrance in the disbursal of welfare benefits. Section 3(1) recognizes the
entitlement of every resident to obtain an Aadhaar number. Section 4(3)
provides that an Aadhaar number may be accepted as proof of identity.
Section 7(1) indicates that its purpose is for establishing the identity of an
individual for the receipt of services, benefits or subsidies drawn from the
Consolidated Fund. These provisions cannot be allowed to displace
constitutional identities. Nor can the provisions of Section 7 reduce an
individual to a nameless or faceless person.
461 (2014) 5 SCC 438

462 (1996) 5 SCC 125
463 (2011) 7 SCC 547
464 Ibid
349
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252 Aadhaar is about identification and is an instrument which facilitates a
proof of identity. It must not obliterate constitutional identity. The definition of
demographic information in Section 2(k) excludes race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history.
However, as has been specifically discussed before, the linking of the
Aadhaar number to different databases is capable of profiling an individual,
which could include information regarding her/his race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history. Thus,
the impact of technology is such that the scheme of Aadhaar can reduce
different constitutional identities into a single identity of a 12-digit number and
infringe the right of an individual to identify herself/himself with choice.
253 Social security schemes and programmes are a medium of existence of
a large segment of society. Social security schemes in India, such as the
PDS, were introduced to protect the dignity of the marginalized. Exclusion
from these schemes defeats the rationale for the schemes which is to
overcome chronic hunger and malnutrition. Exclusion is violative of human
dignity. As discussed previously in detail, the statistics recorded in
government records and the affidavits filed by the petitioners point out glaring
examples of exclusion due to technical errors in Aadhaar. The authentication
failures in the Aadhaar scheme have caused severe disruptions particularly in
rural India. Exclusion as a consequence of biometric devices has a
disproportionate impact on the lives of the marginalized and poor. This Court
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PART H
cannot turn a blind eye to the rights of the marginalized. It may be the fashion
of the day to advance the cause of a digital nation. Technology is undoubtedly
an enabler. It has become a universal unifier of our age. Yet, the interface
between technology and basic human rights cannot be oblivious to social
reality. Compulsive linking of biometrics to constitutional entitlements should
not result in denial to the impoverished. There exists a digital divide. To
railroad those on one side of that divide unconcerned about social and
technical constraints which operate in society is to defeat the purpose of social
welfare. The Court has to be specifically conscious of the dignity of the
underprivileged. The Court must fulfill its role of protecting constitutional
values even if it affects a small percentage of the population. The exclusion
errors in this case have led to grave injustice to the marginalized. The Court,
therefore, has to play an active role in protecting their dignity.
254 The institution of rights places a heavy onus on the State to justify its
restrictions. No right can be taken away on the whims and fancies of the
State. The State has failed to justify its actions and to demonstrate why
facilitating the targeted delivery of subsidies, which promote several rights
such as the right to food for citizens, automatically entails a sacrifice of the
right to privacy when both these rights are protected by the Constitution. One
right cannot be taken away at the behest of the other especially when the
State has been unable to satisfy this Court that the two rights are mutually
exclusive. The State has been unable to respond to the contention of the
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PART H
petitioners that it has failed to consider that there were much less rights-
invasive measures that could have furthered its goals. The burden of proof on
the State was to demonstrate that the right to food and other entitlements
provided through the Aadhaar scheme could not have been secured without
the violating the fundamental rights of privacy and dignity. Dworkin in his
classical book “Taking Rights Seriously”, while answering the question
whether some rights are so important that the State is justified in doing all it
can to maintain even if it abridges other rights, states that:
“But no society that purports to recognize a variety of rights,

on the ground that a man’s dignity or equality may be invaded
in a variety of ways, can accept such a principle… If rights
make sense, then the degrees of their importance cannot
be so different that some count not at all when others are
mentioned.”465 (Emphasis supplied)
255 There is no antinomy between the right to privacy and the legitimate
goals of the State. An invasion of privacy has to be proportional to and
carefully tailored for achieving a legitimate aim. While the right to food is an
important right and its promotion is a constitutional obligation of the State, yet
the right to privacy cannot simply and automatically yield to it. No legitimate
goal of the State can be allowed at the cost of infringement of a fundamental
right without passing the test of constitutionality. While analysing the
architecture of Aadhaar, this Court has demonstrated how the purported
safeguards in the Aadhaar architecture are inadequate to protect the integrity
of personal data, the right of informational self-determination and above all
rights attributable to the privacy-dignity-autonomy trilogy. It is also concluded
465 Ronald Dworkin, Taking Rights Seriously (1977), at pages 203-204
352
PART H
that the Aadhaar scheme is capable of destroying different constitutional
identities. The financial exclusion caused due to errors in Aadhaar based
authentication violate the individual’s right to dignity. The Aadhaar scheme
causes an unwarranted intrusion into fundamental freedoms guaranteed
under the Indian Constitution since the respondents have failed to
demonstrate that these measures satisfy the test of necessity and
proportionality.
H.5 Dignity and financial exclusion
256 Our jurisprudence reflects a keen awareness of the need to achieve
dignity. The nine judge Bench decision in Puttaswamy also emphasized the
seminal value of dignity in our constitutional scheme. Human dignity is a
strengthening bond in the relationship between Parts III and IV of the
Constitution. Reading the Directive Principles contained in Part IV in the
context of the right to life (in Part III of the Constitution) has significant
implications both for the substantive content of the right and on the ability of
the state in pursuit of its positive obligation to secure conditions of a dignified
existence. Dignity is an integral element of natural law and an inalienable
constitutional construct. To lead a dignified life is a constitutional assurance to
an individual. Dr Ambedkar conceptualized four basic premises on which a
political democracy can rest:
“Political Democracy rests on four premises which may be set

out in the following terms:
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PART H
(i) The individual is an end in himself.

(ii) That the individual has certain inalienable rights which
must be guaranteed to him by the Constitution.
(iii) That the individual shall not be required to
relinquish any of his constitutional rights as a
condition precedent to the receipt of a privilege.
(iv) That the State shall not delegate powers to private
persons to govern others.”466 (Emphasis supplied)
Interpreting the words of Dr Ambedkar in a constitutional context, any action
on the part of the State which forces an individual to part with her or his dignity
or any other right under Part III will not be permissible.
257 The experience of living with chronic hunger; recurring uncertainty
about the availability of food; debt bondage; low and highly underpaid work;
self-denial; and sacrifice of other survival needs, being discriminated
against467 are instances of the loss of dignity for the marginalized. The State
has social security programmes and legislation to improve the living conditions
of the marginalized and to protect their dignity and means of livelihood.
However, as documented in the works of Sainath, Dreze, Sen and other
authors, India has “utterly poor standards of the social services provided to
common folk, whether it is the Mid-day Meal Scheme, the Sarva Shiksha
Abhiyan, Integrated Child Development Services, Public Distribution system,
healthcare at the primary health centres, district hospitals and even public
466Dr. Babasaheb Ambedkar: Writings and Speeches (Vol. 1), Dr. Ambedkar Foundation (2014)
467Harsh Mander, Living with Hunger: Deprivation among the Aged, Single Women and People with Disability,
Economic & Political Weekly (April 26, 2008), Vol. 43, available at
https://www.epw.in/journal/2008/17/special-articles/living-hunger-deprivation-among-aged-single-women-and-
people
354
PART H
hospitals in the state capitals”468. This manner of addressing the deprivations
faced by the marginalized crushes their dignity.
Any action or inaction on the part of the State which is insensitive to and
unconcerned about protecting the dignity of the marginalized is constitutionally
impermissible. Denial of benefits arising out of any social security scheme
which promotes socio-economic rights of the marginalized, would not be
legitimate under the Constitution, for the reason that such denial violates
human dignity. No individual can be made to part with his or her dignity.
Responsibility for protection of dignity lies not only with governments but also
with individuals, groups and entities.
It is in the above background that this Court must deal with the next contention
of the petitioners. The submission of the petitioners is that identity recognition
technology may be based on a system which is deterministic or probabilistic.
Biometric authentication systems work on a probabilistic model. For the
purposes of authentication, a comparison is through a template which reduces
the finger print to a scale and then, a minutea. The claim of the petitioners is
that as a result, identities are reduced from certainty to a chance.
468Dignity, Not Mere Roti, Economic & Political Weekly (10 August, 2013), Vol. 48, available at
https://www.epw.in/journal/2013/32/editorials/dignity-not-mere-roti.html
355
PART H
258 Section 7 of the Aadhaar Act makes it mandatory for an individual to
undergo authentication or furnish proof of possession of an Aadhaar number
in order to avail a subsidy, benefit or service, which incurs expenditure from
the Consolidated Fund of India. In the Aadhaar based Biometric
Authentication, the Aadhaar number and biometric information submitted by
an Aadhaar number holder are matched with the biometric information stored
in the CIDR. This may be fingerprints-based or iris-based authentication or
other biometric modalities based on biometric information stored in the
CIDR.469
It has been submitted that failure of the authentication process results in
denial of a subsidy, benefit or service contemplated under Section 7 of the
Act. It has been contended that non-enrolment in the Aadhaar scheme and
non-linking of the Aadhaar number with the benefit, subsidy or service causes
exclusion of eligible beneficiaries. It is the submission of the petitioners that
authentication of biometrics is faulty, as biometrics are probabilistic in nature.
It is the case of the petitioners that Aadhaar based biometric authentication
often results in errors and thus leads to exclusion of individuals from
subsidies, benefits and services provided under Section 7. Across the country,
it has been urged, several persons are losing out on welfare entitlements
because of a biometric mis-match. Mr Divan has argued in his written
submissions, that “the project is not an ‘identity’ project but ‘identification’
469 UIDAI, Aadhaar Authentication, available at https://uidai.gov.in/authentication.html
356
PART H
exercise and unless the biometrics work, a person in flesh and blood, does not
exist for the state”.
In order to deal with this contention, it is necessary to understand whether
biometrics authentication can result in errors in matching. People are identified
by three basic means: “by something they know, something they have, or
something they are”.470 Biometrics fall within the last category, and, as such,
should presumably be less susceptible to being copied or forged. However,
various factors can reduce the probability of accurate human identification,
and this increases the probability of a mismatch. Human fallibility can produce
errors.471
259 In the United States of America, the National Academy of Science
published a report in 2010 on biometrics titled “Biometric Recognition:
Challenges & Opportunities”472. The report was based on a study carried out
by several reputed scientists and researchers under the aegis of the National
Research Council, the National Academy of Engineering and the Institute of
Medicine. This report highlights the nature of biometrics as follows:
“Biometric recognition systems are inherently

probabilistic and their performance needs to be assessed
within the context of this fundamental and critical
characteristic. Biometric recognition involves matching, within
470United States General Accounting Office, Technology Assessment: Using Biometrics for Border Security
(2002), available at http://www.gao.gov/new.items/d03174.pdf.
471Jeremy Wickins, The ethics of biometrics: the risk of social exclusion from the widespread use of electronic
identification, Science & Engineering Ethics (2007), at pages 45-54

472Biometric Recognition: Challenges & Opportunities (Joseph N. Pato and Lynette I. Millett eds.), National
Academy of Science- United States of America (2010), available at https://www.nap.edu/read/12720/chapter/1
357
PART H
a tolerance of approximation, of observed biometric traits

against previously collected data for a subject. Approximate
matching is required due to the variations in biological
attributes and behaviors both within and between persons.”473
(Emphasis supplied)
The report also took note of how changes in an individual’s biometrics may
occur due to a number of factors:
“Biometric characteristics and the information captured

by biometric systems can be affected by changes in age,
environment, disease, stress, occupational factors,
training and prompting, intentional alterations, socio-
cultural aspects of the situation in which the
presentations occurs, changes in human interface with
the system, and so on. As a result, each interaction of the
individual with the system (at enrolment, identification and so
on) will be associated with different biometric information.
Individuals attempting to thwart recognition for one reason or
another also contribute to the inherent uncertainty in biometric
systems.”474 (Emphasis supplied)
The report had also stated that biometrics can result in exclusion of people if it
is used for claiming entitlement to a benefit:
“When used in contexts where individuals are claiming

enrollment or entitlement to a benefit, biometric systems
could disenfranchise people who are unable to
participate for physical, social, or cultural reasons. For
these reasons, the use of biometrics—especially in
applications driven by public policy, where the affected
population may have little alternative to participation—merits
careful oversight and public discussion to anticipate and
minimize detrimental societal and individual effects and to
avoid violating privacy and due process rights.
Social, cultural, and legal issues can affect a system’s

acceptance by users, its performance, or the decisions on
whether to use it in the first place—so it is best to consider
these explicitly in system design. Clearly, the behavior of
those being enrolled and recognized can influence the
accuracy and effectiveness of virtually any biometric system,
473 Ibid, at page 3

474 Ibid
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PART H
and user behavior can be affected by the social, cultural, or

legal context. Likewise, the acceptability of a biometric
system depends on the social and cultural values of the
participant populations.”475 (Emphasis supplied)
The report underlines that the relationship between an individual’s biometric
traits and data records has the potential to cause disenfranchisement, when a
section of the population is excluded from the benefits of positive claim
systems. The report thus states that:
“Policies and interfaces to handle error conditions such as

failure to enroll or be recognized should be designed to
gracefully avoid violating the dignity, privacy, or due
process rights of the participants.” (Emphasis supplied)
260 Els Kindt in a comprehensive research titled “Privacy and Data
Protection Issues of Biometric Applications: A Comparative Legal
Analysis”476, deals with the nature of biometrics. The book notes that error
rates in biometric systems lead to a situation where entitled data subjects will
be falsely rejected from the process of database matching. This will adversely
affect the rights of individuals. It has been observed that:
“The error rates imply also that the system will allow
impostors. This is equally important because the security of
biometric systems should be questioned in case of high false
accept rates. This element should be given sufficient weight
in the decision to implement a biometric system for security
purposes…
Other tests clearly indicated increased error rates for young

persons, in case of aging, in particular for face and for
disabled persons. Individuals with health problems may also
be falsely rejected or no longer be recognized, although they
475Ibid, at pages 10-11

476 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis,
Springer (2013)
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PART H
were previously enrolled. In some cases, (non-)enrolment will

be a significant problem. It is clear that these data subjects
need additional protection.”477
The book underlines the risk inherent in the limited accuracy of biometrics.478
261 A recently published book titled “Automating Inequality: How High-
Tech Tools Profile, Police, and Punish the Poor”479, authored by Virginia
Eubanks, deals with the impact of data mining, policy algorithms, and
predictive risk models on economic inequality and democracy in America.
Eubanks outlines the impacts of automated decision-making on public
services in the USA through three case studies relating to welfare provision,
homelessness and child protection services. Eubanks looks at these three
areas in three different parts of the United States: Indiana, Los Angeles and
Pittsburgh, to examine what technological automation has done in determining
benefits and the problems it causes. The author records that in Indiana, one
million applications for health care, food stamps, and cash benefits in three
years were denied, because a new authentication system interpreted any
application mistake as “failure to cooperate”. In Los Angeles, an algorithm
calculates the comparative vulnerability of thousands of homeless people so
as to prioritize them for an inadequate pool of housing resources. In
Pittsburgh, child services use an algorithm to predict future behaviour.
Statistics are used to predict which children might be future victims of abuse

478 Ibid
479 Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.
Martin's Press (2018)
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PART H
or neglect. Eubanks shows how algorithms have taken over for human
interaction and understanding. She has argued that automated decision-
making is much wider in reach and is likely to have repercussions unknown to
non-digital mechanisms, such as nineteenth-century poorhouses in America.
Poorhouses were tax-supported residential institutions to which people were
required to go if they could not support themselves. 480 People who could not
support themselves (and their families) were put up for bid at public auction.
The person who got the contract (which was for a specific time-frame) got the
use of the labour of the poor individual(s) for free in return for feeding,
clothing, housing and providing health care for the individual and his/her
family. The practice was a form of indentured servitude and hardly had any
recourse for protection against abuse. Eubanks considers the technology
based decision-making for poverty management as the extension of the
poorhouses of the 19th century:
“America’s poor and working-class people have long been

subject to invasive surveillance, midnight raids, and punitive
public policy that increase the stigma and hardship of poverty.
During the nineteenth century, they were quarantined in
county poorhouses. During the twentieth century, they were
investigated by caseworkers, treated like criminals on trial.
Today, we have forged what I call a digital poorhouse from
databases, algorithms, and risk models. It promises to eclipse
the reach and repercussions of everything that came before.
Like earlier technological innovations in poverty management,

digital tracking and automated decision-making hide poverty
from the professional middle-class public and give the nation
the ethical distance it needs to make inhuman choices: who
gets food and who starves, who has housing and who
remains homeless, and which families are broken by the
state. The digital poorhouse is a part of a long American
480 Tommy L. Gardner, Spending Your Way to the Poorhouse, Authorhouse (2004), at page 221
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PART H
tradition. We manage the individual poor in order to escape

our shared responsibility for eradicating poverty.”481
The author further remarks:
“While poorhouses have been physically demolished, their

legacy remains alive and well in the automated decision-
making systems that encage and entrap today's poor. For all
their high-tech polish, our modern systems of poverty
management - automated decision-making, data mining, and
predictive analysis - retain a remarkable kinship with the
poorhouses of the past. Our new digital tools spring from
punitive, moralistic views of poverty and create a system of
high-tech containment and investigation. The digital
poorhouse deters the poor from accessing public
resources; polices their labor, spending, sexuality, and
parenting; tries to predict their future behavior; and
punishes and criminalizes those who do not comply with
its dictates. In the process, it creates ever-finer moral
distinctions between the 'deserving' and 'undeserving'
poor, categorizations that rationalize our national failure
to care for one another.”482 (Emphasis supplied)
Eubanks builds the argument that automated decision-making technology
does not act as a facilitator for welfare schemes for the poor and only acts as
a gatekeeper:
“New high-tech tools allow for more precise measuring and

tracking, better sharing of information, and increased visibility
of targeted populations. In a system dedicated to supporting
poor and working-class people's self-determination, such
diligence would guarantee that they attain all the benefits they
are entitled to by law. In that context, integrated data and
modernized administration would not necessarily result in bad
outcomes for poor communities. But automated decision-
making in our current welfare system acts a lot like older,
atavistic forms of punishment and containment. It filters and
diverts. It is a gatekeeper, not a facilitator.”483
481 Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.
Martin's Press (2018), at pages 12-13
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PART H
The crux of the book is reflected in the following extract:
“We all live in the digital poorhouse. We have always lived in

the world we built for the poor. We create a society that has
no use for the disabled or the elderly, and then are cast aside
when we are hurt or grow old. We measure human worth
based only on the ability to earn a wage, and suffer in a world
that undervalues care and community. We base our economy
on exploiting the labor of racial and ethnic minorities, and
watch lasting inequities snuff out human potential. We see the
world as inevitably riven by bloody competition and are left
unable to recognize the many ways we cooperate and lift
each other up.
But only the poor lived in the common dorms of the

county poorhouse. Only the poor were put under the
diagnostic microscope of scientific clarity. Today, we all
live among the digital traps we have laid for the
destitute.”484 (Emphasis supplied)
Automating Inequality demonstrates the problems with authentication and
algorithmic technology and indicates that the system, which was intended to
provide assistance for the short term and help people out of poverty, has
become a system to perpetuate poverty and injustice.
262 Errors in biometrics matching imply that an individual will not be
considered a part of the biometrics database. If a benefit or service is subject
to the matching of biometrics, then any mismatch would result in a denial of
that benefit or service. Exclusion based on technological errors, with no fault
of the individual, is a violation of dignity. The fate of individuals cannot be left
to the vulnerabilities of technological algorithms or devices. ‘To live is to live
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PART H
with dignity’.485 Arbitrary exclusion from entitled benefits or subsidies is a
violation of dignity. If any such project has to survive, then it has to be ensured
that individual dignity is protected. These concerns have to be addressed.
As mentioned earlier, concerns regarding the application of biometrics in the
Aadhaar project were discussed in 2009 by the Biometrics Standards
Committee of UIDAI486, which was of the view that the large magnitude of the
Aadhaar project raised uncertainty about the accuracy of biometrics. 487 The
Strategy Overview488 published by UIDAI, in 2010, had discussed the risks
associated with biometrics perceived by UIDAI itself. Under the heading of
‘Project Risk’, the overview stated the UID project does face certain risks in its
implementation, which have to be addressed through its architecture and in
the design of its incentives. It stated:
“1) Adoption Risks: There will have to be sufficient, early

demand from residents for the UID number. Without critical
mass among key demographic groups (the rural and the
poor) the number will not be successful in the long term. To
ensure this, the UIDAI will have to model de-duplication
and authentication to be both effective and viable for
participating agencies and service providers…
3) Enrolment Risks: The project will have to be carefully

designed to address risks of low enrolment – such as creating
sufficient touch points in rural areas, enabling and motivating
Registrars, ensuring that documentary requirements don't
derail enrolment in disadvantaged communities – as well as
managing difficulties in address verification, name standards,
lack of information on date of birth, and hard to record
fingerprints.
485 Puttaswamy, at para 119

486 UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4
487 Ibid
488 UIDAI, UIDAI Strategy Overview, (2010), available at
http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf
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PART H
4) Risks of Scale: The project will have to handle records

that approach one billion in number. This creates
significant risks in biometric de-duplication as well as in
administration, storage, and continued expansion of
infrastructure.
5) Technology risks: Technology is a key part of the UID

program, and this is the first time in the world that storage,
authentication and de-duplication of biometrics are being
attempted on this scale. The authority will have to address
the risks carefully – by choosing the right technology in
the architecture, biometrics, and data management tools;
managing obsolescence and data quality; designing the
transaction services model and innovating towards the
best possible result.
6) Privacy and security risks: The UIDAI will have to ensure

that resident data is not shared or compromised.”489
(Emphasis supplied)
Technological error would result in authentication failures. The concerns
raised by UIDAI ought to have been resolved before the implementation of the
Aadhaar project. Poor connectivity in rural India was a major concern. The
majority of the Indian population lives in rural areas. Even a small percentage
of error results in a population of crores being affected. Denial of subsidies
and benefits to them due to the infirmities of biometric technology is a threat to
good governance and social parity.
263 The issue of exclusion needs to be considered at three different levels:
(i) before the implementation of the Aadhaar Act, when biometrics were being
used since 2009; (ii) under the provisions of the Act; and (iii) at the practical
level during the implementation of the Aadhaar programme.
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PART H
Before the enactment of the Aadhaar Act in 2016, the Standing Committee on
Finance, which examined the NIA Bill, was concerned about the impact of
Aadhaar on marginalized sections of society. Since the availing of subsidies
and benefits was to depend upon Aadhaar based authentication, any error in
the authentication would result in a denial of the benefits of social security
schemes for the marginalized. In 2011, the report of the Standing Committee
noted, thus:
“The full or near full coverage of marginalized sections for

issuing Aadhaar numbers could not be achieved mainly owing
to two reasons viz. (i) the UIDAI doesn’t have the statistical
data relating to them; and (ii) estimated failure of
biometrics is expected to be as high as 15% due to a
large chunk of population being dependent on manual
labour.”490 (Emphasis supplied)
The Economic Survey 2016-17 has adverted to authentication failures while
discussing the concept of Universal Basic Income (UBI). The Survey, which is
an official document of the Union government, states that UBI is premised on
the idea that a just society needs to guarantee to each individual a minimum
income which they can count on, and which provides the necessary material
foundation for a life with access to basic goods and a life of dignity.491 UBI was
to be implemented by providing cash transfers (for availing benefits of social
security schemes) to the bank accounts of beneficiaries. The implementation
of UBI was to be undertaken through what is described as the JAM trinity:
490 Forty-Second Report of the Standing Committee on Finance (2011), available at

http://www.prsindia.org/uploads/media/UID/uid%20report.pdf, at page 30
491 Government of India, Economic Survey 2016-17, available at
https://www.thehinducentre.com/multimedia/archive/03193/Economic_Survey_20_3193543a.pdf, at
page 173
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Jan-Dhan Bank Accounts, Aadhaar data and Mobile phones. However, the
Survey noted that while Aadhaar is designed to solve the identification
problem, it cannot solve the “targeting problem” on its own. The Survey
emphasized the need to build state capacity and that “the state will still have
to enhance its capacities to provide a whole range of public goods”.492 The
Survey has recorded the statistics of authentication failures of Aadhaar in
several regions of the country:
“While Aadhaar coverage speed has been exemplary, with

over a billion Aadhaar cards being distributed, some states
report authentication failures: estimates include 49 percent
failure rates for Jharkhand, 6 percent for Gujarat, 5 percent
for Krishna District in Andhra Pradesh and 37 percent for
Rajasthan. Failure to identify genuine beneficiaries results in
exclusion errors.”493
No failure rate in the provision of social welfare benefits can be regarded as
acceptable. Basic entitlements in matters such as foodgrain, can brook no
error. To deny food is to lead a family to destitution, malnutrition and even
death.
264 A recent Office Memorandum dated 19 December 2017 issued by the
Cabinet Secretariat of the Union government494 acknowledges that the
Aadhaar enrolment process has not been completed and that infrastructure
constraints are capable of posing difficulties in online authentication. The
Memorandum provides that those beneficiaries who do not possess Aadhaar,

494 Office Memorandum dated 19 December 2017, available at
https://dbtbharat.gov.in/data/om/Office%20Memorandum_Aadhaar.pdf
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shall be provided a subsidy, benefit or service based on alternate identification
documents as contemplated by Section 7 of the Aadhaar Act. It also requires
efforts to be made to ensure that all beneficiaries are facilitated to get
enrolment under the Aadhaar programme. The Memorandum creates a
mechanism for availing subsidies, benefits or services in cases where
Aadhaar authentication fails:
(i) Departments and Bank Branches may make provisions for IRIS scanners
along with fingerprint scanners wherever feasible;
(ii) In cases of failure due to lack of connectivity, offline authentication
systems such as QR code based coupons, Mobile based OTP or TOTP
may be explored; and
(iii) In all cases where online authentication is not feasible, the benefit/service
may be provided on the basis of possession of Aadhaar, after duly
recording the transaction in a register, to be reviewed and audited
periodically.
The figures from the Economic Survey of India indicate that there are millions
of eligible beneficiaries across India who have suffered financial exclusion.
The Cabinet Secretariat has pro-actively acknowledged the need to address
matters of exclusion by implementing alternate modalities, apart from those
set out in Section 7. Options (i) and (ii) above were to be implemented in
future. This exercise should have been undertaken by the government in
advance. Problems have to be anticipated when a project is on the drawing
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PART H
board, not after severe deprivations have been caused by the denial of social
welfare benefits.
265 Exclusion of citizens from availing benefits of social security schemes
because of failures or errors in Aadhaar based biometric authentication has
also been documented in research studies and academic writings published
by members of civil society, including Reetika Khera and Jean Dreze. Similar
testimonies have been recorded in affidavits submitted before this Court by
civil society activists. Hearing the voices of civil society must be an integral
part of the structural design of a project, such as Aadhaar. In the absence of a
credible mechanism to receive and respond to feed-back, the state has to
depend on its own personnel who may not always provide reliable and candid
assessments of performance and failure.
266 ABBA (Aadhaar based biometric authentication) refers to the practice of
installing a Point of Sale (PoS) machine equipped with a fingerprint reader and
authenticating a person each time she accesses her entitlements.495 Dreze
has stated that for successful authentication in PDS outlets, several
technologies need to work simultaneously.496 These are497:
495Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16
December 2017), available at https://www.epw.in/journal/2017/50/special-articles/impact-aadhaar-welfare-
programmes.html
496Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available at
https://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/article14631030.ece
497 Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar and the Public Distribution
System in Hyderabad, Economic & Political Weekly (18 February 2017), Vol. 52, available at
https://www.epw.in/journal/2017/7/web-exclusives/well-done-abba.html
369
PART H
(a) Seeding of Aadhaar numbers: An eligible individual can become a
beneficiary and access the PDS system only if her Aadhaar number is
correctly seeded onto the PDS database and added to the household
ration card;
(b) Point of Sale (PoS) machines: The process at the PDS outlet is
dependent on the PoS machine. If it malfunctions, no transaction can be
made. The first step in the process requires the dealer to enter the ration
card number of the beneficiary’s household onto the PoS machine;
(c) Internet connection: Successful working of the PoS machine depends on
internet connectivity as verification of the ration card number and the
beneficiary’s biometric fingerprint is carried out over the internet;
(d) Remote Aadhaar servers: Remote Aadhaar servers verify the ration card
number and initiate fingerprint authentication; and
(e) Fingerprint recognition software: The beneficiary proves her identity by
submitting to fingerprint recognition in the PoS machine. Upon verification,
the PoS machine indicates that the beneficiary is genuine and that
foodgrains can be distributed to her household.
The above procedure requires that at the time of purchase of PDS grains each
month, any one person listed on the ration card needs to authenticate
themselves. Similarly, for pensions, elderly persons must go to the point of
delivery to authenticate themselves. Reetika Khera has observed that since
ABBA on PoS machines is currently a monthly activity, so each of its
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PART H
associated technologies (correct Aadhaar-seeding, mobile connectivity,
electricity, functional PoS machines and UIDAI servers and fingerprint
recognition) needs to work for a person to get their entitlement.498 Dreze has
referred to the above procedure as “a wholly inappropriate technology for rural
India”499. Network failures and other glitches routinely disable this sort of
technology. Dreze has further observed that in villages with poor connectivity,
it is a “recipe for chaos”500.
267 A government-commissioned sample study501 in Andhra Pradesh to
ascertain the efficiency of Aadhaar-based social programmes in the case of
subsidised grains indicated that technical deficiencies are depriving the poor
of their access to food. The study was commissioned by the state government
after it was found that 22% of the PDS beneficiaries did not take the ration in
the month of May 2015. The sample study, which covered five PDS outlets in
three districts, found that half of the beneficiaries of PDS in the surveyed
areas could not access their ration quota due to glitches, lack of training and
mismatches linked to Aadhaar. In the survey, a majority of beneficiaries
reported fingerprint mismatches and the inability of fair-price shop owners to
498
Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16
programmes.html
499Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available at
https://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/article14631030.ece
500Ibid
501Society for Social Audit, Accountability and Transparency, FP Shops Left Over Beneficiaries Report, available
at
http://www.socialaudit.ap.gov.in/SocialAudit/LoadDocument?docName=Fair%20Price%20Work%20%20Shops
%20(Ration%20Card%20Holders)%20-%20Beneficiaries%20Report.pdf&type=application. See also Aadhaar-
based projects failing the poor, says Andhra govt study, Hindustan Times (7 October 2015), available at
https://www.hindustantimes.com/india/aadhaar-based-projects-failing-the-poor-says-andhra-govt-study/story-
7MFBCeJcfl85Lc5zztON6L.html
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PART H
operate point-of-sale (POS) devices correctly as major hurdles. Aadhaar
numbers did not match with ration card numbers in many cases.
Another survey502 of 80 households conducted in Hyderabad finds that despite
the introduction of technology-intensive authentication and payment systems,
a significant number of those vulnerable and dependent on Public Distribution
System (PDS) for food grains are failing to realise their right to food. The
survey revealed that among 80 surveyed households, 89% reported receiving
full entitlements at correct prices even before the introduction of Aadhaar-
based biometric authentication (ABBA). In contrast, 10% of households were
excluded due to authentication failures due to reported errors with one or
more of its five technological components.
268 An article titled “Aadhaar and Food Security in Jharkhand: Pain
without Gain?”503, based on a household survey in rural Jharkhand,
examines various issues related to compulsory ABBA for availing PDS
benefits. The article notes the impact of PDS on the lives of the rural poor,
who visit the ration shop every month. In “their fragile and uncertain lives”, the
PDS provides a “modicum of food and economic security”. The article notes
that in ABBA, the failure of authentication results in denial of food from ration
shops. The household is unable to get food rations for no fault of its own. The
502Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar and the Public Distribution
System in Hyderabad, Economic & Political Weekly, Vol. 52 (18 February 2017), available at
https://www.epw.in/journal/2017/7/web-exclusives/well-done-abba.html
503Jean Drèze, Nazar Khalid, Reetika Khera, and Anmol Somanchi, Aadhaar and Food Security in Jharkhand:
Pain without Gain?, Economic & Political Weekly, Vol. 52 (16 December 2017).
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PART H
article comes to the conclusion that the imposition of ABBA on the PDS in
Jharkhand is a case of “pain without gain”, as it has led to serious problems of
exclusion (particularly for vulnerable groups such as widows, the elderly and
manual workers). The article further notes that ABBA has neither failed to
reduce quantity fraud (which is the main form of PDS corruption in
Jharkhand), nor has it helped to address other critical shortcomings of the
PDS in Jharkhand, such as the problem of missing names in ration cards, the
identification of Antyodaya (poorest of the poor) households, or the arbitrary
power of private dealers. The article identifies poor internet connectivity as
one of the reasons for authentication failures and eventual exclusion:
“Sporadic internet connectivity is another major hurdle.

Sometimes, light rain is enough to disrupt connectivity or the
electricity supply. Every step in the ABBA process—ration
card verification, biometric authentication, electronic upload of
transactions, updating NFSA [National Food Security Act] lists
and entitlements on the PoS504 [Point of Sale] machine—
depends on internet connectivity. Further, even with stable
connectivity, biometric authentication is not always easy.
Biometric failures are especially common for two groups: the
elderly, and manual labourers. Both are particularly
vulnerable to food insecurity.”505
The article regards the denial of basic services to the poor due to failure of
ABBA as a form of grave injustice:
504 Ibid, at page 51. The article states: “[PoS] is a handheld device installed at every PDS outlet (“ration shop”)
and connected to the Internet. The list of ration cards attached to that outlet, and their respective entitlements,
are stored in the PoS machine and updated every month. When a cardholder turns ups, the PoS machine first
“authenticates” her by matching her fingerprints with the biometric data stored against her Aadhaar number in
the Central Identities Data Repository (CIDR). The machine then generates a receipt with the person’s
entitlements, which are also audible from a recorded message... The transaction details are also supposed to
be entered by the dealer in the person’s ration card.”
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PART H
“Imposing a technology that does not work on people

who depend on it for their survival is a grave injustice.”506
(Emphasis supplied)
As we have noted in an earlier part of this judgment, even the Economic
Survey of India 2016-17 found a 49% failure rate for beneficiaries in
Jharkhand and 37% in Rajasthan. Those at the receiving end are the poorest
of the poor.
Reetika Khera looks at the impact of Aadhaar-integration with security
schemes (primarily in MGNREGA, PDS and social security pensions). 507 The
author also discusses briefly the impact of Aadhaar on liquefied petroleum gas
(LPG) subsidy and the application of Aadhaar in the mid-day meal (MDM)
scheme. In coming to its conclusions, the article has relied upon quantitative
data from primary field studies, secondary data from government portals,
figures obtained through queries made under the Right to Information (RTI)
Act, and responses to questions in Parliament. In Khera’s words, Aadhaar is
becoming a “tool of exclusion”:
“Savings or exclusion? The government claimed that

Aadhaar integration saved 399 crore up to 31 December
2016 (GoI 2017c). At a given level of benefits, a reduction in
government expenditure in any particular transfer scheme
can be on two counts: removal of ghosts and duplicates
(“efficiency”); and a fall in the number of genuine beneficiaries
(“shrinkage”), for instance, if they do not link their Aadhaar
numbers when required. Across welfare schemes, the
government has been treating any reduction in expenditure
as “savings,” even when it comes from shrinkage. This is true
506Ibid, at page 58
507 Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16
programmes.html
374
PART H
for SSP [social security pension] as well. For instance, in

Rajasthan, pensioners were “mistakenly” recorded as dead
and this was presented as Aadhaar-enabled savings (Yadav
2016f). In Jharkhand too, pensioners’ names have been
deleted because they did not complete Aadhaar-seeding
formalities or pensions stopped due to seeding errors (Sen
2017a). Studying 100 pensioners, selected from 10 randomly-
selected villages from five blocks of Ranchi district in
February 2017, Biswas (2017) finds that 84% of her
respondents receive pensions but irregularity in payments
was a big issue. The remaining 16% were not receiving it due
to Aadhaar-related issues.”508
Puja Awasthi documents the plight of individuals suffering from leprosy, who
have been denied pensions due to not being able to get enrolled into the
Aadhaar system. Leprosy can damage fingerprints and thus make an
individual incapable of providing biometrics. Awasthi’s article509 notes that
Aadhaar is capable of causing a denial of benefits or services to 86,000
citizens, who suffer from leprosy.
These writings show how in most cases, an authentication failure means that
the individual/household was denied the benefit of a social security
programme for no fault of their own. Some have gone hungry. Some
reportedly lost their lives.510

509Puja Awasthi, Good enough to vote, not enough for Aadhaar, People’s Archive of Rural India, available at
https://ruralindiaonline.org/articles/good-enough-to-vote-not-enough-for-aadhaar
510 Yet another Aadhaar-linked death? Denied rations for 4 months, Jharkhand woman dies of hunger, Scroll (3
Feb. 2018), available at: https://scroll.in/article/867352/yet-another-aadhaar-linked-death-jharkhand-woman-

dies-of-hunger-after-denial-of-rations; Denied food because she did not have Aadhaar-linked ration card,
Jharkhand girl dies of starvation, Scroll (16 Oct 2017), available at: https://scroll.in/article/854225/denied-food-
because-she-did-not-have-aadhaar-linked-ration-card-jharkhand-girl-dies-of-starvation
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PART H
269 A person’s biometrics change over time. For persons, who are engaged
in manual labour, and persons who are disabled or aged, fingerprints actually
cannot be captured by biometric devices. The material which has been relied
upon in this segment originates from government’s official documents as well
as from distinguished academics and researchers from civil society. There
exist serious issues of financial exclusion. Pensions for the aged particularly
in cases where a pension is earned for past service – are not charity or doles.
They constitute legal entitlements. For an old age pensioner, vicissitudes of
time and age obliterate fingerprints. Hard manual labour severely impacts
upon fingerprints. The elderly, the disabled and the young are the most
vulnerable and a denial of social welfare entitlements verily results in a
deprivation of the right to life. Should the scholarship of a girl child or a mid-
day meal for the young be made to depend on the uncertainties of biometric
matches? Our quest for technology should not be oblivious to the country’s
real problems: social exclusion, impoverishment and marginalisation. The
Aadhaar project suffers from crucial design flaws which impact upon its
structural probity. Structural design in delivering welfare entitlements must be
compliant with structural due process, to be in accord with Articles 14 and 21.
The Aadhaar project has failed to account for and remedy the flaws in its
framework and design which lead to serious issues of exclusion. Dignity and
rights of individuals cannot be based on algorithms or probabilities.
Constitutional guarantees cannot be subject to the vicissitudes of technology.
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PART H
270 Structural due process imposes requirements on public institutions and
projects at the macro level. Structural due process requires that the delivery
of social welfare benefits must be effective and timely. Those who are eligible
for the benefits must not face exclusion. Procedures for the disbursal of
benefits must not be oppressive. They must be capable of compliance both by
those who disburse and by those who receive the benefits. Deployment of
technology must factor in the available of technological resources in every part
of the coverage area and the prevailing levels of literacy and awareness.
Above all, the design of the project will be compliant with structural due
process only if it is responsive to deficiencies, accountable to the beneficiaries
and places the burden of ensuring that the benefits reach the marginalised on
the state and its agencies.
H.6 Constitutional validity of Section 139AA of the Income Tax Act

1961
271 Section 139AA of the Income Tax Act 1961 which was inserted by the
Finance Act 2017, mandates the quoting of an Aadhaar number in the application
for a Permanent Account Number (PAN) and in the return of income tax. Failure
to intimate an Aadhaar number results in the PAN being deemed invalid
retrospectively.
Section 139AA reads thus:
“Quoting of Aadhaar number.- (1) Every person who is

eligible to obtain Aadhaar number shall, on or after the 1st
day of July, 2017, quote Aadhaar number-
(i) in the application form for allotment of permanent
account number;
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PART H
(ii) in the return of income:
Provided that where the person does not possess

the Aadhaar Number, the Enrolment ID of
Aadhaar application form issued to him at the time
of enrolment shall be quoted in the application for
permanent account number or, as the case may
be, in the return of income furnished by him.
(2) Every person who has been allotted permanent account

number as on the 1st day of July, 2017, and who is eligible to
obtain Aadhaar number, shall intimate his Aadhaar number to
such authority in such form and manner as may be
prescribed, on or before a date to be notified by the Central
Government in the Official Gazette:
Provided that in case of failure to intimate the
Aadhaar number, the permanent account number
allotted to the person shall be deemed to be
invalid and the other provisions of this Act shall
apply, as if the person had not applied for
allotment of permanent account number.
(3) The provisions of this Section shall not apply to such
person or class or classes of persons or any State or part of
any State, as may be notified by the Central Government in
this behalf, in the Official Gazette.
Explanation. - For the purposes of this section, the
expressions –
(i) “Aadhaar number”, “Enrolment” and “resident”
shall have the same meanings respectively
assigned to them in Clauses (a), (m) and (v) of
Section 2 of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, Benefits and
Services) Act, 2016 (18 of 2016);
(ii) “Enrolment ID” means a 28 digit Enrolment
Identification Number issued to a resident at the
time of enrolment.”
272 In Binoy Viswam v Union of India (“Binoy Viswam”),511 a two judge
Bench (consisting of Dr Justice AK Sikri and Justice Ashok Bhushan) upheld
the constitutional validity of Section 139AA. Since the issue of whether privacy
is a constitutionally guaranteed right was pending before a Bench of nine
judges (the decision in Puttaswamy was still to be delivered), the two judge
511 (2017) 7 SCC 59
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PART H
Bench did not dwell on the challenge to the legislation on the ground of
privacy and under Article 21. The Bench examined other submissions based
on Articles 14 and 19 and on the competence of Parliament to enact the law.
273 The decision in Binoy Viswam holds that in assessing the
constitutional validity of a law, two grounds of judicial review are available:
(i) The legislative competence of the law-making body which has enacted
the law, over the subject of legislation; and
(ii) Compliance with Part III of the Constitution, which enunciates the
fundamental rights, and with the other provisions of the Constitution.
Holding that a third ground of challenge – that the law in question is arbitrary –
is not available, the decision in Binoy Viswam placed reliance on the
enunciation of law by a three judge Bench in State of A P v McDowell & Co
(Mcdowell).512 McDowell ruled that while a challenge to a statute on the
ground that it violates the principle of equality under Article 14 is available, a
statute cannot be invalidated on the ground that it is arbitrary:
“43…In other words, say, if an enactment is challenged as

violative of Article 14, it can be struck down only if it is found
that it is violative of the equality clause/equal protection
clause enshrined therein…
No enactment can be struck down by just saying that it is
arbitrary or unreasonable. Some or other constitutional
infirmity has to be found before invalidating an Act.”513
512 (1996) 3 SCC 709

379
PART H
In Binoy Viswam, the two judge Bench observed that the “contours” of
judicial review had been spelt out in State of Madhya Pradesh v Rakesh
Kohli,514 and more recently in Rajbala v State of Haryana.515 Reiterating the
same position, Binoy Viswam holds:
“81.Another aspect in this context, which needs to be

emphasised, is that a legislation cannot be declared
unconstitutional on the ground that it is “arbitrary” inasmuch
as examining as to whether a particular Act is arbitrary or not
implies a value judgment and the courts do not examine the
wisdom of legislative choices and, therefore, cannot
undertake this exercise.”516
274 In the decision of the Constitution Bench in Shayara Bano v Union of
India (“Shayara Bano”),517 Justice Rohinton Nariman speaking for himself
and Justice Uday U Lalit noticed that the dictum in McDowell, to the effect
that “no enactment can be struck down by just saying it is arbitrary or
unreasonable” had failed to notice the judgment of the Constitution Bench in
Ajay Hasia v Khalid Mujib Sehravardi (“Ajay Hasia”),518 and a three judge
Bench decision in Dr K R Lakshmanan v State of T N (“Lakshmanan”).519
In Ajay Hasia, the Constitution Bench traced the evolution of the doctrine of
equality beyond its origins in the doctrine of classification. Ajay Hasia ruled
that since the decision in E P Royappa v State of Tamil Nadu,520 it had been
held that equality had a substantive content which, simply put, was the
antithesis of arbitrariness. Consequently:
514 (2012) 6 SCC 312

515 (2016) 2 SCC 445
517 (2017) 9 SCC 1
518 (1981) 1 SCC 722
519 (1996) 2 SCC 226
520 (1974) 4 SCC 3
380
PART H
“16...Wherever therefore there is arbitrariness in State

action whether it be of the legislature or of the executive
or of an “authority” under Article 12, Article 14
immediately springs into action and strikes down such
State action. In fact, the concept of reasonableness and non-
arbitrariness pervades the entire constitutional scheme and is
a golden thread which runs through the whole of the fabric of
the Constitution.”521 (Emphasis supplied)
The principle of arbitrariness was applied for invalidating a State law by the
three judge Bench decision in Lakshmanan. It was, in this context that Justice
Nariman speaking for two Judges in the Constitution Bench in Shayara Bano
held that manifest arbitrariness is a component of Article 14. Hence, a law
which is manifestly arbitrary would violate the fundamental right to equality:
“87. The thread of reasonableness runs through the entire

fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of law,
would violate Article 14. Further, there is an apparent
contradiction in the three-Judge Bench decision in McDowell
when it is said that a constitutional challenge can succeed on
the ground that a law is “disproportionate, excessive or
unreasonable”, yet such challenge would fail on the very
ground of the law being “unreasonable, unnecessary or
unwarranted”. The arbitrariness doctrine when applied to
legislation obviously would not involve the latter challenge but
would only involve a law being disproportionate, excessive or
otherwise being manifestly unreasonable. All the aforesaid
grounds, therefore, do not seek to differentiate between State
action in its various forms, all of which are interdicted if they
fall foul of the fundamental rights guaranteed to persons and
citizens in Part III of the Constitution.”522
Justice Nariman has observed that even after McDowell, challenges to the
validity of legislation have been entertained on the ground of arbitrariness
521 Ajay Hasia at page 741

381
PART H
(Malpe Vishwanath Acharya v State of Maharashtra,523 Mardia Chemicals
Ltd. v Union of India,524 State of Tamil Nadu v K Shyam Sunder,525
Andhra Pradesh Dairy Development Corporation Federation v B
Narasimha Reddy526 and K T Plantation Private Limited v State of
Karnataka527).
275 In Shayara Bano, Justice Nariman has adverted to the decisions which
have followed McDowell including the two judge Bench decision in Binoy
Viswam. These decisions, in the view of Justice Nariman, are therefore no
longer good law:
“99. However, in State of Bihar v. Bihar Distillery Ltd., SCC at

para 22, in State of M.P. v. Rakesh Kohli, SCC at paras 17 to
19, in Rajbala v. State of Haryana, SCC at paras 53 to 65 and
in Binoy Viswam v. Union of India, SCC at paras 80 to
82, McDowell was read as being an absolute bar to the use of
“arbitrariness” as a tool to strike down legislation under Article
14. As has been noted by us earlier in this
judgment, McDowell itself is per incuriam, not having noticed
several judgments of Benches of equal or higher strength, its
reasoning even otherwise being flawed. The judgments,
following McDowell are, therefore, no longer good law.”528
In the above extract, Justice Nariman has specifically held that the McDowell
test which barred a challenge to a law on the ground of arbitrariness ignored a
binding Constitution Bench view in Ajay Hasia and that of a three judge
Bench in Lakshmanan. Moreover, the above extract from Shayara Bano
523 (1998) 2 SCC 1

524 (2004) 4 SCC 311
525 (2011) 8 SCC 737
526 (2011) 9 SCC 286
527 (2011) 9 SCC 1
382
PART H
disapproves of the restriction on judicial review in Binoy Viswam, which
follows McDowell. Justice Kurian Joseph, in the course of his decision has
specifically agreed with the view expressed by Justice Nariman:
“5…However, on the pure question of law that a legislation,

be it plenary or subordinate, can be challenged on the ground
of arbitrariness, I agree with the illuminating exposition of law
by Nariman J. I am also of the strong view that the
constitutional democracy of India cannot conceive of a
legislation which is arbitrary.”
276 In Puttaswamy, the judgment delivered on behalf of four Judges
expressly recognized the impact of Article 14 in determining whether a law
which is challenged on the ground that it violates Article 21 meets both the
procedural as well as the substantive content of reasonableness. The Court
held:
“291… the evolution of Article 21, since the decision

in Cooper indicates two major areas of change. First, the
fundamental rights are no longer regarded as isolated silos or
watertight compartments. In consequence, Article 14 has
been held to animate the content of Article 21. Second, the
expression “procedure established by law” in Article 21 does
not connote a formalistic requirement of a mere presence of
procedure in enacted law. That expression has been held to
signify the content of the procedure and its quality which must
be fair, just and reasonable. The mere fact that the law
provides for the deprivation of life or personal liberty is not
sufficient to conclude its validity and the procedure to be
constitutionally valid must be fair, just and reasonable. The
quality of reasonableness does not attach only to the content
of the procedure which the law prescribes with reference to
Article 21 but to the content of the law itself. In other words,
the requirement of Article 21 is not fulfilled only by the
enactment of fair and reasonable procedure under the law
and a law which does so may yet be susceptible to challenge
on the ground that its content does not accord with the
requirements of a valid law. The law is open to substantive
challenge on the ground that it violates the fundamental
right.”529
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The same principle has been emphasized in the following observations:
“294…Article 14, as a guarantee against arbitrariness, infuses

the entirety of Article 21. The interrelationship between the
guarantee against arbitrariness and the protection of life and
personal liberty operates in a multi-faceted plane. First, it
ensures that the procedure for deprivation must be fair, just
and reasonable. Second, Article 14 impacts both the
procedure and the expression “law”. A law within the meaning
of Article 21 must be consistent with the norms of fairness
which originate in Article 14. As a matter of principle, once
Article 14 has a connect with Article 21, norms of fairness and
reasonableness would apply not only to the procedure but to
the law as well.”530
277 In Binoy Viswam, the two judge Bench held that while enrolment
under the Aadhaar Act is voluntary, it was legitimately open to the Parliament,
while enacting Section 139AA of the Income Tax Act to make the seeding of
the Aadhaar number with the PAN card mandatory. The court held that the
purpose of making it mandatory under the Income Tax Act was to curb black
money, money laundering and tax evasion. It was open to Parliament to do so
and its legislative competence could not be questioned on that ground. The
court held that the legislative purpose of unearthing black money and curbing
money laundering furnished a valid nexus with the objective sought to be
achieved by the law:
“105. Unearthing black money or checking money laundering

is to be achieved to whatever extent possible. Various
measures can be taken in this behalf. If one of the measures
is introduction of Aadhaar into the tax regime, it cannot be
denounced only because of the reason that the purpose
would not be achieved fully. Such kind of menace, which is
deep-rooted, needs to be tackled by taking multiple actions
and those actions may be initiated at the same time. It is the
combined effect of these actions which may yield results and
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PART H
each individual action considered in isolation may not be

sufficient. Therefore, rationality of a particular measure
cannot be challenged on the ground that it has no nexus with
the objective to be achieved. Of course, there is a definite
objective. For this purpose alone, individual measure cannot
be ridiculed. We have already taken note of the
recommendations of SIT on black money headed by Justice
M.B. Shah. We have also reproduced the measures
suggested by the Committee headed by Chairman, CBDT on
“Measures to Tackle Black Money in India and Abroad”. They
have, in no uncertain terms, suggested that one singular
proof of identity of a person for entering into finance/business
transactions, etc. may go a long way in curbing this foul
practice. That apart, even if solitary purpose of de-duplication
of PAN cards is taken into consideration, that may be
sufficient to meet the second test of Article 14. It has come on
record that 11.35 lakh cases of duplicate PAN or fraudulent
PAN cards have already been detected and out of this 10.52
lakh cases pertain to individual assessees. Seeding of
Aadhaar with PAN has certain benefits which have already
been enumerated. Furthermore, even when we address the
issue of shell companies, fact remains that companies are
after all floated by individuals and these individuals have to
produce documents to show their identity. It was sought to be
argued that persons found with duplicate/bogus PAN cards
are hardly 0.4% and, therefore, there was no need to have
such a provision. We cannot go by percentage figures. The
absolute number of such cases is 10.52 lakhs, which figure,
by no means, can be termed as miniscule, to harm the
economy and create adverse effect on the nation. The
respondents have argued that Aadhaar will ensure that there
is no duplication of identity as biometrics will not allow that
and, therefore, it may check the growth of shell companies as
well.
106. Having regard to the aforesaid factors, it cannot be said
that there is no nexus with the objective sought to be
achieved.”531
The court observed that it was a harsh reality of our times that the benefit of
welfare measures adopted by the State does not reach the segments of
society for whom they are intended:
“125.1.3… However, for various reasons including corruption,

actual benefit does not reach those who are supposed to
receive such benefits. One of the main reasons is failure to
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PART H
identify these persons for lack of means by which identity

could be established of such genuine needy class.
Resultantly, lots of ghosts and duplicate beneficiaries are able
to take undue and impermissible benefits. A former Prime
Minister of this country has gone on record to say that out of
one rupee spent by the Government for welfare of the
downtrodden, only 15 paisa thereof actually reaches those
persons for whom it is meant. It cannot be doubted that with
UID/Aadhaar much of the malaise in this field can be taken
care of.”532
In this context, the court also noted that as a result of de-duplication
exercises, 11.35 lakh cases of duplicate PANs / fraudulent PANs had been
detected out of which 10.52 lakh cases pertained to individual assesses. The
court upheld the decision of Parliament as the legislating body of seeding
PANs with Aadhaar as “the best method, and the only robust method of de-
duplication of PAN database”.
278 The edifice of Section 139AA is based on the structure created by the
Aadhaar Act. Section 139AA of the Income Tax Act 1962 is postulated on the
requirement of Aadhaar having been enacted under a valid piece of
legislation. The validity of the legislation seeding Aadhaar to PAN is
dependent upon and cannot be segregated from the validity of the parent
Aadhaar legislation. In fact, that is one of the reasons why in Binoy Viswam,
the Article 21 challenge was not adjudicated upon since that was pending
consideration before a larger Bench. The validity of seeding Aadhaar to PAN
under Section 139AA must therefore depend upon the constitutional validity of
the Aadhaar Act as it is determined by this Court. Further Rule 114B of the
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PART H
Income Tax Rules 1962 provides for a list of transactions for which a person
must quote a PAN card number. Rule 114B requires that a person must
possess a PAN card for those transactions. These are summarized below:
• “Sale or purchase of a motor vehicle or vehicle, as

defined in clause (28) of section 2 of the Motor Vehicles
Act, 1988 (59 of 1988) which requires registration by a
registering authority under Chapter IV of that Act, other
than two wheeled vehicles.
• Opening an account [other than a time-deposit and a
Basic Savings Bank Deposit Account] with a banking
company or a co-operative bank to which the Banking
Regulation Act, 1949 (10 of 1949), applies (including any
bank or banking institution referred to in section 51 of that
Act).
• Making an application to any banking company or a co-
operative bank to which the Banking Regulation Act, 1949
(10 of 1949), applies (including any bank or banking
institution referred to in section 51 of that Act) or to any
other company or institution, for issue of a credit or debit
card.
• Opening of a demat account with a depository,
participant, custodian of securities or any other person
registered under sub-section (1A) of section 12 of the
Securities and Exchange Board of India Act, 1992 (15 of
1992).
• Payment to a hotel or restaurant against a bill or bills at
any one time.
• Payment in connection with travel to any foreign country
or payment for purchase of any foreign currency at any
one time.
• Payment to a Mutual Fund for purchase of its units.
• Payment to a company or an institution for acquiring
debentures or bonds issued by it.
• Payment to the Reserve Bank of India, constituted under
section 3 of the Reserve Bank of India Act, 1934 (2 of
1934) for acquiring bonds issued by it.
• Deposit with,—
• banking company or a co-operative bank to which
the Banking Regulation Act, 1949 (10 of 1949),
applies (including any bank or banking institution
referred to in section 51 of that Act);
• Post Office.
• Purchase of bank drafts or pay orders or banker's
cheques from a banking company or a co-operative bank
to which the Banking Regulation Act, 1949 (10 of 1949),
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PART H
applies (including any bank or banking institution referred

to in section 51 of that Act).
• A time deposit with, —
• a banking company or a co-operative bank to which
the Banking Regulation Act, 1949 (10 of 1949),
applies (including any bank or banking institution
referred to in section 51 of that Act);
• a Post Office;
• a Nidhi referred to in section 406 of the Companies
Act, 2013 (18 of 2013); or
• a non-banking financial company which holds a
certificate of registration under section 45-IA of the
Reserve Bank of India Act, 1934 (2 of 1934), to hold
or accept deposit from public.
• Payment for one or more pre-paid payment instruments,
as defined in the policy guidelines for issuance and
operation of pre-paid payment instruments issued by
Reserve Bank of India under section 18 of the Payment
and Settlement Systems Act, 2007 (51 of 2007), to a
banking company or a co-operative bank to which the
Banking Regulation Act, 1949 (10 of 1949), applies
(including any bank or banking institution referred to in
section 51 of that Act) or to any other company or
institution.
• Payment as life insurance premium to an insurer as
defined in clause (9) of section 2 of the Insurance Act,
1938 (4 of 1938).
• A contract for sale or purchase of securities (other than
shares) as defined in clause (h) of section 2 of the
Securities Contracts (Regulation) Act, 1956 (42 of 1956).
• Sale or purchase, by any person, of shares of a company
not listed in a recognised stock exchange.
• Sale or purchase of any immovable property.
• Sale or purchase, by any person, of goods or services of
any nature other than those specified above.”
The decision in Puttaswamy has recognised that protection of the interests of
the revenue constitutes a legitimate state aim in the three-pronged test of
proportionality. The circumstances which have been adverted to in the
decision in Binoy Viswam are a sufficient indicator of the legitimate concerns
of the revenue to curb tax evasion, by embarking upon a programme for de-
duplication of the Pan data base. A legitimate state aim does exist. However,
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PART H
that in itself is not sufficient to uphold the validity of the law, which must meet
the other parameters of proportionality spelt out in Puttaswamy. The
explanation to Section 139AA adopts the definition of the expressions
‘Aadhaar number’, ‘enrolment’ and ‘resident’ from the parent Aadhaar
legislation. The seeding of Aadhaar with Pan cards must depend for its validity
on the constitutional validity of the Aadhaar legislation. Hence, besides
affirming that the object of the measure in Section 139AA constitutes a
legitimate state aim, the decision of this Court in regard to the validity of
Aadhaar will impact upon the seeding of PAN with Aadhaar, which Section
139AA seeks to achieve.
H.7 Linking of SIM cards and Aadhaar numbers
279 In Avishek Goenka v Union of India533, a three judge Bench of this
Court dealt with a public interest litigation seeking to highlight the non-
observance of norms, regulations and guidelines relating to subscriber
verification by Telecom Service Providers (TSPs). The Department of
Telecommunications (DoT), in the course of the proceedings, filed its
instructions stating its position in regard to the verification of prepaid and
postpaid mobile subscribers. While concluding the proceedings, this Court
directed the constitution of an expert committee comprising of representatives
of TRAI and DoT. The court mandated that the following issues should be
examined by the Committee:
533 (2012) 5 SCC 275
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PART H
“(a) Whether re-verification should be undertaken by the

service provider/licensee, DoT itself or any other central
body?
(b) Is there any need for enhancing the penalty for
violating the instructions/guidelines including sale of pre-
activated SIM cards?
(c) Whether delivery of SIM cards may be made by post?
Which is the best mode of delivery of SIM cards to provide
due verification of identity and address of a subscriber?
(d) Which of the application forms i.e. the existing one or
the one now suggested by TRAI should be adopted as
universal application form for purchase of a SIM card?
(e) In absence of Unique ID card, whether updating of
subscriber details should be the burden of the licensee
personally or could it be permitted to be carried out through
an authorised representative of the licensee?
(f) In the interest of national security and the public
interest, whether the database of all registered subscribers
should be maintained by DoT or by the licensee and how
soon the same may be made accessible to the security
agencies in accordance with law?”534
In pursuance of the above directive, DoT issued instructions on the verification
of new mobile subscribers on 9 August 2012. On 6 January 2016, TRAI
addressed a communication to DoT recommending that the new procedure for
subscriber verification was “cumbersome and resource intensive” and hence
should be replaced by an Aadhaar linked e-KYC mechanism. Following this,
DoT issued a directive on 16 August 2016 to launch an Aadhaar e-KYC
service across all licenced service areas for issuance of mobile connections.
However, it was stated that the e-KYC process was an alternative, in addition
to the existing process of issuing mobile connections to subscribers and would
not be applicable for bulk, outstation and foreign customers.
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PART H
280 A public interest litigation was filed before this Court under Article 32 in
Lokniti Foundation v Union of India535. The relief which claimed was that
there should be a definite mobile phone subscriber verification to ensure a
hundred per cent verification of subscribers. Responding to the petition, the
Union Government informed this Court that DoT had launched an Aadhaar
based e-KYC for issuing mobile connections on 16 August 2016, by which
customers as well as point of sale agents of TSPs will be authenticated by
UIDAI. A statement was made by the learned Attorney General that an
effective programme for verification of prepaid connections would be devised
within one year. In view of the statement of the AG, the petition was disposed
of by a two judge Bench in terms of the following directions:
“5. In view of the factual position brought to our notice during

the course of hearing, we are satisfied, that the prayers made
in the writ petition have been substantially dealt with, and an
effective process has been evolved to ensure identity
verification, as well as, the addresses of all mobile phone
subscribers for new subscribers. In the near future, and more
particularly, within one year from today, a similar verification
will be completed, in the case of existing subscribers. While
complimenting the petitioner for filing the instant petition, we
dispose of the same with the hope and expectation, that the
undertaking given to this Court, will be taken seriously, and
will be given effect to, as soon as possible.”536
Following the decision, DoT issued a directive on 23 March 2017 to all
licensees stating that a way forward had been found to implement the
directions of the Supreme Court. Based on the hypothesis that this Court had
directed an E-KYC verification, DoT proceeded to implement it on 23 March
2017.
535 (2017) 7 SCC 155

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PART H
281 Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of
UIDAI and the State of Gujarat supported the measure. He submitted that the
licences of all TSPs are issued under Section 4 of the Indian Telegraph Act
1885. Since the Central Government has the exclusive privilege of
establishing, maintaining and working telegraphs, TSPs, it was urged, have to
operate the telegraph under a license and the Central Government is entitled
to impose conditions on the licensee. The instruction issued by DoT on 23
March 2017 has, it is urged, the sanction of Section 4 of the Indian Telegraph
Act 1885.
282 We must at the outset note the ambit of the proceedings before this
Court in Lokniti Foundation. In response to the public interest litigation, it
was the Union Government which relied on its decision of 16 August 2016 to
implement e-KYC verification for mobile subscribers. The petition was
disposed of since the prayers were substantially dealt with and the court
perceived that an effective process had been adopted to ensure identity
verification together with verification of addresses. Existing subscribers were
directed to be verified in a similar manner within one year. The issue as to
whether the seeding of Aadhaar with mobile SIM cards was constitutionally
valid did not fall for consideration.
283 The decision to link Aadhaar numbers with SIM cards and to require e-
KYC authentication of mobile subscribers has been looked upon by the Union
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PART H
government purely as a matter of efficiency of identification. TRAI’s letter
dated 6 January 2016 states that the new procedure for subscriber verification
which it had adopted was “cumbersome and resource intensive”. The issue as
to whether Aadhaar linked e-KYC authentication would seriously compromise
the privacy of mobile subscribers did not enter into the decision making
calculus. In applying the test of proportionality, the matter has to be addressed
not just by determining as to whether a measure is efficient but whether it
meets the test of not being disproportionate or excessive to the legitimate aim
which the state seeks to pursue. TRAI and DoT do have a legitimate concern
over the existence of SIM cards obtained against identities which are not
genuine. But the real issue is whether the linking of Aadhaar cards is the least
intrusive method of obviating the problems associated with subscriber
verification. The state cannot be oblivious to the need to protect privacy and of
the dangers inherent in the utilization of the Aadhaar platform by telecom
service providers. In the absence of adequate safeguards, the biometric data
of mobile subscribers can be seriously compromised and exploited for
commercial gain. While asserting the need for proper verification, the state
cannot disregard the countervailing requirements of preserving the integrity of
biometric data and the privacy of mobile phone subscribers. Nor can we
accept the argument that cell phone data is so universal that one can become
blasé about the dangers inherent in the revealing of biometric information.
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PART H
284 The submission that a direction of this nature could have been given to
TSPs under Section 4 of the Indian Telegraph Act 1885 does not answer the
basic issue of its constitutional validity, which turns upon the proportionality of
the measure. Having due regard to the test of proportionality which has been
propounded in Puttaswamy and as elaborated in this judgment, we do not
find that the decision to link Aadhaar numbers with mobile SIM cards is valid
or constitutional. The mere existence of a legitimate state aim will not justify
the means which are adopted. Ends do not justify means, at least as a matter
of constitutional principle. For the means to be valid, they must be carefully
tailored to achieve a legitimate state aim and should not be either
disproportionate or excessive in their encroachment on individual liberties.
285 Mobile technology has become a ubiquitous feature of our age. Mobile
phones are not just instruments to facilitate a telephone conversation. They
are a storehouse of data reflecting upon personal preferences, lifestyles and
individual choices. They bear upon family life, the workplace and personal
intimacies. The conflation of biometric data with SIM cards is replete with
grave dangers to personal autonomy. A constitution based on liberal values
cannot countenance an encroachment of this nature. The decision to link
Aadhaar numbers to SIM cards and to enforce a regime of e-KYC
authentication clearly does not pass constitutional muster and must stand
invalidated. All TSPs shall be directed by the Union government and by TRAI
to forthwith delete the biometric data and Aadhaar details of all subscribers
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within two weeks. The above data and Aadhaar details shall not be used or
purveyed by any TSP or any other person or agency on their behalf for any
purpose whatsoever.
I Money laundering rules
286 Parliament enacted a law on money-laundering as part of a concerted
effort by the international community to deal with activities which constitute a
threat to financial systems and to the integrity and sovereignty of nations. The
Statement of Objects and Reasons accompanying the introduction of the Bill
contains an elucidation of the reasons for the enactment:
“Introduction
Money-laundering poses a serious threat not only to the
financial systems of countries, but also to their integrity and
sovereignty. To obviate such threats international community
has taken some initiatives. It has been felt that to prevent
money-laundering and connected activities a comprehensive
legislation is urgently needed. To achieve this objective the
Prevention of Money-laundering Bill, 1998 was introduced in
the Parliament. The Bill was referred to the Standing
Committee on Finance, which presented its report on 4th
March 1999 to the Lok Sabha. The Central Government
broadly accepted the recommendation of the Standing
Committee and incorporated them in the said Bill along with
some other desired changes.
Statement of Objects and Reasons

It is being realized, world over, that money-laundering poses
a serious threat not only to the financial systems of countries,
but also to their integrity and sovereignty. Some of the
initiatives taken by the international community to obviate
such threat are outlined below:-
(a) the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, to which
India is a party, calls for prevention of laundering of
proceeds of drug crimes and other connected activities
and confiscation of proceeds derived from such offence.
(b) the Basle Statement of Principles, enunciated in 1989,
outlined basic policies and procedures that banks should
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PART I
follow in order to assist the law enforcement agencies in

tackling the problem of money laundering.
(c) the Financial Action Task Force established at the summit
of seven major industrial nations, held in Paris from 14th
to 16th July 1989, to examine the problem of money-
laundering has made forty recommendations, which
provide the foundation material for comprehensive
legislation to combat the problem of money-laundering.
The recommendations were classified under various
heads. Some of the important heads are-
(i) declaration of laundering of monies carried through
serious crimes a criminal offence;
(ii) to work out modalities of disclosure by financial
institutions regarding reportable transactions;
(iii) confiscation of the proceeds of crime;
(iv) declaring money-laundering to be an extraditable
offence; and
(v) promoting international co-operation in
investigation of money-laundering.
(d) the Political Declaration and Global Programme of Action
adopted by United Nations General Assembly by its
Resolution No. S-17/2 of 23rd February 1990, inter alia,
calls upon the member States to develop mechanism to
prevent financial institutions from being used for
laundering of drug related money and enactment of
legislation to prevent such laundering.
(e) the United Nations in the Special Session on countering
World Drug Problem Together concluded on the 8th to the
10th June 1998 has made another declaration regarding
the need to combat money-laundering. India is a
signatory to this declaration.”
287 The expressions “beneficial owner, reporting entity and intermediary”
are defined respectively in clauses (fa), (wa) and (n) of the Act thus:
“(fa) “beneficial owner” means an individual who ultimately

owns or controls a client of a reporting entity or the person on
whose behalf a transaction is being conducted and includes a
person who exercises ultimate effective control over a
juridical person.
(wa) “reporting entity” means a banking company, financial
institution, intermediary or a person carrying on a designated
business or profession.
(n) “intermediary” means,-
(i) a stock-broker, sub-broker share transfer agent, banker
to an issue, trustee to a trust deed, registrar to an issue,
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PART I
merchant banker, underwriter, portfolio manager,

investment adviser or any other intermediary associated
with securities market and registered under section 12 of
the Securities and Exchange Board of India Act, 1992 (15
of 1992); or
(ii) an association recognised or registered under the
Forward Contracts (Regulation) Act, 1952 (74 of 1952) or
any member of such association; or
(iii) intermediary registered by the Pension Fund
Regulatory and Development Authority; or
(iv) a recognised stock exchange referred to in clause (f) of
section 2 of the Securities Contracts (Regulation) Act,
1956 (42 of 1956).”
The Prevention of Money-Laundering (Maintenance of Records) Rules 2005
were amended by the Prevention of Money-Laundering (Maintenance of
Records) Second Amendment Rules 2017. By the amendment, several
definitions were introduced with reference to the provisions of the Aadhaar
Act. These are:
“‘(aaa) “Aadhaar number” means an identification number as

defined under sub-section (a) of section 2 of the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016;
(aab) “authentication” means the process as defined under
sub-section (c) of section 2 of the Aadhaar (Targeted Delivery
of Financial and Other Subsidies, Benefits and Services) Act,
2016;
(aac) “Resident” means an individual as defined under sub-
section (v) of section 2 of the Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act,
2016;
(aad) “identity information” means the information as defined
in sub-section (n) of section 2 of the Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016;
(aae) “e – KYC authentication facility” means an
authentication facility as defined in Aadhaar (Authentication)
Regulations, 2016;
(aaf) “Yes/No authentication facility” means an authentication
facility as defined in Aadhaar (Authentication) Regulations,
2016…”
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PART I
Similarly, the expression “officially valid document” was amended to read as
follows:
“(d) “officially valid document” means the passport, the

driving licence, the Permanent Account Number (PAN) Card,
the Voter’s Identity Card issued by [Election Commission of
India, job card issued by NREGA duly signed by an officer of
the State Government, the letter issued by the Unique
Identification Authority of India containing details of name,
address and Aadhaar number or any other document as
notified by the Central Government in consultation with
the [Regulator]:
[Provided that where simplified measures are applied for
verifying the identity of the clients the following documents
shall be deemed to be officially valid documents:-
(a) identity card with applicant’s Photograph issued by the
Central/State Government Departments, Statutory/
Regulatory Authorities, Public Sector Undertakings,
Scheduled Commercial Banks and Public Financial
Institutions;
(b) letter issued by a gazette officer, with a duly attested
photograph of the person].”
288 Rule 9 of the 2005 Rules requires every reporting entity to carry out
client due diligence at the time of the commencement of an account-based
relationship. Due diligence requires a verification of the identity of the client
and a determination of whether the client is acting on behalf of a beneficial
owner, who then has to be identified. Rule 9(3) defines the expression
“beneficial owner” for the purpose of sub-rule 1. Rule 9(4) requires an
individual client to submit an Aadhaar number. Rule 9(3) and Rule 9(4) are
extracted below:
“9. Client Due Diligence.—(1) Every reporting entity shall—

xxxxx
xxxxx
(3) The beneficial owner for the purpose of sub-rule (1) shall
be determined as under—
(a) where the client is a company, the beneficial owner is
the natural person(s), who, whether acting alone or
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together, or through one or more juridical person, has a

controlling ownership interest or who exercises control
through other means.
Explanation.—For the purpose of this sub-clause-
1. "Controlling ownership interest" means ownership
of or entitlement to more than twenty-five per cent. of
shares or capital or profits of the company;
2. "Control" shall include the right to appoint majority
of the directors or to control the management or
policy decisions including by virtue of their shareholding
or management rights or shareholders agreements or
voting agreements;
(b) where the client is a partnership firm, the beneficial
owner is the natural person(s) who, whether acting alone or \
together, or through one or more juridical person, has I
ownership of/ entitlement to more than fifteen per cent. of
capital or profits of the partnership;
(c) where the client is an unincorporated association or
body of individuals, the beneficial owner is the natural
person(s), who, whether acting alone or together, or through
one or more juridical person, has ownership of or entitlement
to more than fifteen per cent. of the property or capital or
profits of such association or body of individuals;
(d) where no natural person is identified under (a) or (b) or (c)
above, the beneficial owner is the relevant natural person
who holds the position of senior managing official;
(e) where the client is a trust, the identification of beneficial
owner(s) shall include identification of the author of the trust,
the trustee, the beneficiaries with fifteen per cent. or more
interest in the trust and any other natural person exercising
ultimate effective control over the trust through a chain of
control or ownership; and
(f) where the client or the owner of the controlling interest
is a company listed on a stock exchange, or is a subsidiary
of such a company, it is not necessary to identify and verify
the identity of any shareholder or beneficial owner of such
companies.
(4) Where the client is an individual, who is eligible to be
enrolled for an Aadhaar number, he shall for the purpose of
sub-rule (1) submit to the reporting entity, -
(a) the Aadhaar number issued by the Unique
Identification Authority of India; and
(b) the Permanent Account Number or Form No. 60 as
defined in Income-tax Rules, 1962, and such other
documents including in respect of the nature of business and
financial status of the client as may be required by the
reporting entity:
Provided that where an Aadhaar number has not been
assigned to a client, the client shall furnish proof of
application of enrolment for Aadhaar and in case the
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Permanent Account Number is not submitted, one certified

copy of an 'officially valid document' shall be submitted.
Provided further that photograph need not be submitted by a
client falling under clause (b) of sub-rule (1).”
(Emphasis supplied)
Sub-rule 15 of Rule 9 requires the reporting entity to carry out authentication
at the time of receipt of the Aadhaar number:
“(15) Any reporting entity, at the time of receipt of the

Aadhaar number under provisions of this rule, shall carry out
authentication using either e-KYC authentication facility or
Yes/No authentication facility provided by Unique
Identification Authority of India.”
Sub-rule 17 allows a period of six months for a client who is eligible to be
enrolled for Aadhaar and to obtain a PAN to submit it upon the
commencement of the account-based relationship. Failure to do so, would
result in the account ceasing to be operational until the Aadhaar number and
PAN are submitted. Clauses a and c of sub-rule 17 provide as follows :
“(17) (a) In case the client, eligible to be enrolled for Aadhaar

and obtain a Permanent Account Number, referred to in sub-
rules (4) to (9) of rule 9 does not submit the Aadhaar number
or the Permanent Account Number at the time of
commencement of an account based relationship with a
reporting entity, the client shall submit the same within a
period of six months from the date of the commencement of
the account based relationship:
Provided that the clients, eligible to be enrolled for Aadhaar
and obtain the Permanent Account Number, already having
an account based relationship with reporting entities prior to
date of this notification, the client shall submit the Aadhaar
number and Permanent Account Number by 31st December,
2017.
(c) In case the client fails to submit the Aadhaar number and
Permanent Account Number within the aforesaid six months
period, the said account shall cease to be operational till the
time the Aadhaar number and Permanent Account Number is
submitted by the client:
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Provided that in case client already having an account based

relationship with reporting entities prior to date of this
notification fails to submit the Aadhaar number and
Permanent Account Number by 31st December, 2017, the
said account shall cease to be operational till the time the
Aadhaar number and Permanent Account Number is
submitted by the client.”
289 The statutory mandate for the framing these rules is contained in
Sections 12, 15 and 73 of the PMLA. Insofar as is material, Section 12
provides as follows:
“12. Reporting entity to maintain records:-

(1) Every reporting entity shall-
(a) maintain a record of all transactions, including
information relating to transactions covered under
clause (b), in such manner as to enable it to
reconstruct individual transactions;
(b) furnish to the Director within such time as may be
prescribed, information relating to such transactions,
whether attempted or executed, the nature and value
of which may be prescribed;
(c) verify the identity of its clients in such manner and
subject to such conditions, as may be prescribed;
(d) identify the beneficial owner, if any, of such of its
clients, as may be prescribed;
(e) maintain record of documents evidencing identity
of its clients and beneficial owners as well as
account files and business correspondence
relating to its clients.
(2) Every information maintained, furnished or verified, save
as otherwise provided under any law for the time being in
force, shall be kept confidential.
(3) The records referred to in clause (a) of sub-section (1)
shall be maintained for a period of five years from the date
of transaction between a client and the reporting entity.
(4) The records referred to in clause (e) of sub-section (1)
shall be maintained for a period of five years after the
business relationship between a client and the reporting
entity has ended or the account has been close, whichever
is later.
(5) The Central Government may, by notification, exempt any
reporting entity or class of reporting entities from any
obligation under this Chapter.”
(Emphasis supplied)
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PART I
Section 12 imposes a statutory obligation on reporting entities to maintain
records and to verify the identity of their clients and beneficial owners in the
manner prescribed. The procedure for and manner in which information is
furnished by reporting entities is specified under sub-section 1 of Section 12
by the Central Government in consultation with the Reserve Bank of India.
Section 15 provides as follows:
“15. Procedure and manner of furnishing information by

reporting entities:-
The Central Government may, in consultation with the
Reserve Bank of India, prescribe the procedure and the
manner of maintaining and furnishing information by a
reporting entity under sub-section (1) of Section 12 for the
purpose of implementing the provisions of this Act.”
(Emphasis supplied)
The rule making power is referable to the provisions of Section 73, which
insofar as is material, provides as follows:
“73. Power to make rules-

(1) The Central Government may, by notification, make rules
for carrying out the provisos of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of
the following matters, namely-
(j) the manner and the conditions in which identity of

clients shall be verified by the reporting entities under
clause (c) of sub-section (1) of Section 12;
(jj) the manner of identifying beneficial owner, if any, from
the clients by the reporting entities under clause (d) of
sub-section (1) of Section 12;
(k) the procedure and the manner of maintaining and
furnishing information under sub-section (1) of Section
12 as required under Section 15;
(x) any other matter which is required to be, or may be,
prescribed.”
Section 12(1)(c) requires the reporting entity to verify the identity of its clients
“in such manner and subject to such conditions” as may be prescribed. The
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PART I
provisions of the rules, including sub-rule 17(c) of Rule 9 have been
challenged on the ground that they suffer from the vice of excessive
delegation.
290 In Bombay Dyeing and Mfg v Bombay Environmental Action
Group537, this Court has re-affirmed the well-settled legal test which
determines the validity of delegated legislation. The court held:
“104…By reason of any legislation, whether enacted by the

legislature or by way of subordinate legislation, the State
gives effect to its legislative policy. Such legislation, however,
must not be ultra vires the Constitution. A subordinate
legislation apart from being intra vires the Constitution, should
not also be ultra vires the parent Act under which it has been
made. A subordinate legislation, it is trite, must be reasonable
and in consonance with the legislative policy as also give
effect to the purport and object of the Act and in good faith.”
The essential legislative function consists in the determination of legislative
policy and of formally enacting it into a binding rule of conduct. Once this is
carried out by the legislature, ancillary or subordinate functions can be
delegated. Having laid down legislative policy, the legislation may confer
discretion on the executive to work out the details in the exercise of the rule
making power, though, in a manner consistent with the plenary enactment (J
K Industries Ltd v Union of India538).
291 The Reserve Bank of India had issued a Master Circular dated 25
February 2016 in exercise of its statutory powers under Section 35A of the
537 (2006) 3 SCC 434
538 (2007) 13 SCC 673
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PART I
Banking Regulation Act 1949 (read with Section 56) and Rule 9(14) of the
Prevention of Money-Laundering (Maintenance of Records) Rules 2005.
Following the amendment of the PMLA Rules, the Master Circular of the
Reserve Bank has been updated on 20 April 2018.
The basic issue which needs to be addressed is whether the amendments
which were brought about to the PMLA Rules in 2017 meet the test of
proportionality.
292 In 2005, the Central Government in consultation with the Reserve Bank
of India notified the Prevention of Money-Laundering (Maintenance of
Records) Rules 2005 under Section 73 of the parent Act. The expression
‘officially valid document’ was defined in Rule 2(d) in the following terms :
“(d) “officially valid document” means the passport, the driving

licence, the Permanent Account Number (PAN) Card, the
Voter’s Identity Card issued by539 [Election Commission of
India, job card issued by NREGA duly signed by an officer of
the State Government, the letter issued by the Unique
Identification Authority of India540 [or the National Population
Register] containing details of name, address and Aadhaar
number or any other document as notified by the Central
Government in consultation with the [Regulator];”
Rule 9(4) required the submission to the reporting entity, where the client is an
individual, a certified copy of an officially valid document containing details of
identity and address. Rule 9(4) read as follows :
“(4) Where the client is an individual, he shall for the purpose

of sub-rule (1), submit to the reporting entity, one certified
539 Substituted by G.S.R. 980(E), dated 16-12-2010 (w.e.f. 16-12-2010)

540 Inserted by G.S.R. 544(E)
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PART I
copy of an “officially valid document” containing details of his

identity and address, one recent photograph and such other
documents including in respect of the nature of business and
financial status of the client as may be required by the
reporting entity:”
Under Rule 9(14), the regulator was empowered to issue guidelines, in terms
of the provisions of the rule, and to prescribe enhanced or simplified measures
to verify the identity of a client, taking into consideration the type of client,
business relationship, and the nature and value of transactions based on the
overall money-laundering and terrorist financing risks involved. Under the
above rules there were six ‘officially valid documents’ : the passport, driving
licence, Permanent Account Number (PAN) Card, NREGA job card, Voter’s
Identity Card and a letter of UIDAI containing details of name, address and
details of Aadhaar number. or any other document notified by the Central
Government in consultation with the Regulator.
293 In the Master Circular issued by the Reserve Bank of India on 25
February 2016, a provision was made for the submission by customers, at
their option, of one of the six officially valid documents (OVDs) for proof of
identity and address. Rule 3(vi) defined the expression ‘officially valid
document’ in similar terms:
“(vi) “officially valid document” means the passport, the

driving licence, the Permanent Account Number (PAN) Card,
the Voter’s Identity Card issued by the Election Commission
of India, job card issued by NREGA duly signed by an officer
of the State Government, letter issued by the Unique
Identification Authority of India containing details of name,
address and Aadhaar number.
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PART I
Explanation: Customers, at their option, shall submit one of

the six OVDs for proof of identity and proof of address.”
Customer due diligence and on-going due diligence were defined thus:
“Customer Due Diligence (CDD)” means indemnifying and

verifying the customer and the beneficial owner using
‘Officially Valid Documents’ as a ‘proof of identity’ and a ‘proof
of address’.
“On-going Due Diligence” means regular monitoring of
transactions in accounts to ensure that they are consistent
with the customers’ profile and source of funds.”
294 Chapter III of the Master Circular provided for regulated entities
(including banks) to specify a customer acceptance policy. Clause 15 of the
Master Circular inter alia specified that customers shall not be required to
furnish additional OVDs if the OVD already submitted, contained both proof of
identity and address. Chapter VI which provided for a due diligence procedure
allowed customers to submit one of the six OVDs for proof of identity and
address. Under Part V of Chapter VI, banks were required to conduct on-
going due diligence particularly in regard to large and complex transactions
above a threshold. Clause 39 of the Circular provided for a partial freezing and
closure of accounts:
“39. Partial freezing and closure of accounts

(a) Where REs are unable to comply with the CDD
requirements mentioned at Part I to V above, they shall
not open accounts, commence business relations or
perform transactions. In case of existing business
relationship which is not KYC compliant, banks shall
ordinarily take step to terminate the existing business
relationship after giving due notice.
(b) As an exception to the Rule, banks shall have an option
to choose not to terminate business relationship straight
away and instead opt for a phased closure of operations
in this account as explained below:
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PART I
i. The option of ‘partial freezing’ shall be exercise

after giving due notice of three months to the
customers to comply with KYC requirements.
ii. A reminder giving a further period of three months
shall also be given.
iii. Thereafter, ‘partial freezing’ shall be imposed by
allowing credits and disallowing all debits with the
freedom to close the accounts in case of the
account being KYC non-compliant after six
months of issue first notice.
iv. All debits and credits from/to the accounts shall be
disallowed, in case of the account being KYC non-
compliant after six months of imposing ‘partial
freezing’,
v. The account holders shall have the option, to
revive their accounts by submitting the KYC
documents.
(c) When an account is closed whether without ‘partial
freezing’ or after ‘partial freezing’, the reason for that shall
be communicated to account holder.”
Chapter VIII provided for reporting requirements to the Financial Intelligence
Unit. Chapter IX dealt with compliance with requirements/obligations under
international agreements. Clause 58 of Chapter X stipulated reporting
requirements under the Foreign Account Tax Compliance Act (FATCA) and
Common Reporting Standards (CRS).
295 As a result of the amendment to the Rules brought about in 2017, Rule
9(4) mandates that in the case of a client who is an individual, who is eligible
to be enrolled for an Aadhaar number, submission of the Aadhaar number is
mandatory. Instead of furnishing an option to submit one of six OVDs,
submission of Aadhaar number alone is mandated. Where an Aadhaar
number has not been assigned, proof of an application for enrolment is
required to be submitted. Under Rule 9(15), the reporting entity at the time of
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PART I
receipt of an Aadhaar number is under an obligation to carry out
authentication using either the e-KYC authentication facility or the yes/no
authentication provided by UIDAI. If a client who is eligible to be enrolled for
Aadhaar and to obtain a PAN card does not submit its details while
commencing an account based relationship, there is a period of six months
reserved for submission. Those who already have accounts are required to
submit their Aadhaar numbers by a stipulated date. Failure to do so, renders
the account subject to the consequence that it shall cease to be operational
until compliance is effected.
Following the amendments to the rules, the Reserve Bank has updated its
Master Circular on 20 April 2018 to bring it into conformity with the amended
rules.
296 In deciding whether the amendment brought about in 2017 to the rules
is valid, it is necessary to bear in mind what has already been set out earlier
on the aspect of proportionality. Does the requirement of the submission or
linking of an Aadhaar number to every account- based relationship satisfy the
test of proportionality?
The state has a legitimate aim in preventing money-laundering. In fact, it is
with a view to curb and deal with money-laundering that the original version of
the Master Circular as well as its updated version impose conditions for initial
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PART I
and on-going due diligence. The Reserve Bank has introduced several
reporting requirements including those required to comply with FATCA norms.
The existence of a legitimate state aim satisfies only one element of
proportionality. In its submissions, the Union government has dealt only with
legitimate aim, leaving the other elements of proportionality unanswered.
Requiring every client in an account based relationship to link the Aadhaar
number with a bank account and to impose an authentication requirement, is
excessive to the aim and object of the state. There can be no presumption
that all existing account holders as well as every individual who seeks to open
an account in future is a likely money-launderer. The type of client, the nature
of the business relationship, the nature and value of the transactions and the
terrorism and laundering risks involved may furnish a basis for distinguishing
between cases and clients. The rules also fail to make a distinction between
opening an account and operating an account. If an account has been opened
in the past, it would be on the basis of an established identity. The
consequences of the non-submission of an Aadhaar number are draconian.
Non-submission within the stipulated period will result in a consequence of the
account ceasing to be operational. A perfectly genuine customer who is
involved in no wrongdoing would be deprived of the use of the moneys and
investments reflected in the account, in violation of Article 300A of the
Constitution purely on an assumption that he or she has indulged in money-
laundering. The classification is over-inclusive: a uniform requirement of such
a nature cannot be imposed on every account based relationship irrespective
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PART I
of the risks involved to the financial system. The account of a pensioner or of
a salaried wage earner cannot be termed with the same brush as a high net-
worth individual with cross-border inflows and outflows. Treating every
account holder with a highly intrusive norm suffers from manifest arbitrariness.
Moreover, there is no specific provision in the Act warranting a consequence
of an account holder being deprived of the moneys standing in the account,
even if for a temporary period. Section 12(1)(c) empowers a reporting entity
to verify the entity or its client in such a manner and “subject to such
conditions” as may be prescribed. This does not envisage a consequence of
an account ceasing to be operational. Blocking an account is a deprivation of
property under Article 300A. The Union Government has been unable to
discharge the burden of establishing that this was the least intrusive means of
achieving its aim to prevent money-laundering or that its object would have
been defeated if it were not to impose the requirement of a compulsory linking
of Aadhaar numbers with all account based relationships with the reporting
entity. Money-laundering is indeed a serious matter and the Union
Government is entitled to take necessary steps including by classifying
transactions and sources which give rise to reasonable grounds for suspecting
a violation of law. But, to impose a uniform requirement of linking Aadhaar
numbers with all account based relationships is clearly disproportionate and
excessive. It fails to meet the test of proportionality and suffers from manifest
arbitrariness. While we have come to the above conclusion, we clarify that this
would not preclude the Union Government in the exercise of its rule making
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PART J
power and the Reserve Bank of India as the regulator to re-design the
requirements in a manner that would ensure due fulfillment of the object of
preventing money-laundering, subject to compliance with the principles of
proportionality as outlined in this judgment.
J Savings in Section 59
297 Section 59 of the Aadhaar Act provides:
“Anything done or any action taken by the Central

Government under the Resolution of the Government of India,
Planning Commission bearing notification number A-
43011/02/2009-Admin. I, dated the 28th January, 2009, or by
the Department of Electronics and Information Technology
under the Cabinet Secretariat Notification bearing notification
number S.O. 2492(E), dated the 12th September, 2015, as
the case may be, shall be deemed to have been validly done
or taken under this Act.”
298 The petitioners have submitted that all acts done pursuant to the
Notifications dated 28 January 2009 and 12 September 2015, under which the
Aadhaar programme was created and implemented, violate fundamental
rights and were not supported by the authority of law. It has been submitted
that the collection, storage and use of personal data by the State and private
entities, which was done in a legislative vacuum as the State failed to enact
the Aadhaar Act for six years, is now being sought to be validated by Section
59. It has been contended that since the acts done prior to the enactment of
the Aadhaar Act are in breach of fundamental rights, Section 59 is invalid.
Moreover, Section 59 does not operate to validate the collection of biometric
data prior to the enforcement of the Aadhaar Act.
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It has been submitted that a validating law must remove the cause of invalidity
of previous acts: it would not be effective if it simply deems a legal
consequence without amending the law from which the consequence could
follow. In the present case, it has been contended, Section 59 does not create
a legal fiction where the Aadhaar Act is deemed to have been in existence
since 2009 and that it only declares a legal consequence of the acts done by
the Union since 2009.
It has also been submitted that Section 59 is invalid and unconstitutional
inasmuch as for Aadhaar enrolments done before 2016, there was neither
informed consent nor were any procedural guarantees and safeguards
provided under a legal framework. Section 59, it is contended, cannot cure the
absence of consent and other procedural safeguards, provided under the
Aadhaar Act, to the enrolments done prior to the enactment of the Act.
299 The respondents have submitted that Section 59 protects the actions
taken by the Central government. It does not contemplate the maintenance of
any data base, containing identity information, by the State governments. The
State governments, it is urged, have destroyed the biometric data collected
during Aadhaar enrolments before the Act came into force, from their server.
It has been contended that Section 59 is retrospective in nature as it states
that it shall operate from an earlier date.
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PART J
The Respondents have relied upon the judgments of this Court in West
Ramnad Electric Distribution Co. Ltd. v State of Madras541 (“West
Ramnad”), State of Mysore v D. Achiah Chetty, Etc542 (“Chetty”), and Hari
Singh v Military Estate Officer543 (“Hari Singh”) to contend that the
legislature can, by retrospective operation, cure the invalidity of actions taken
under a law which is void for violating fundamental rights.
It has also been contended that before the advent of the Aadhaar Act, no
individual has been enrolled under compulsion, and since all enrolments were
voluntary, they cannot be considered to be in breach of Article 21 or any other
fundamental right. It is further submitted that non-adjudication of the issue of
whether collection of identity information violates the right to privacy, does not
prevent the Parliament from enacting a validating clause. Reliance has also
been placed on State of Karnataka v State of Tamil Nadu544 to submit that
Section 59 creates a deemed fiction as a result of which one has to imagine
that all actions taken under the notifications were taken under the Act.
300 Section 7 provides that the Central Government or the State
Governments may require proof of an Aadhaar number as a necessary
condition for availing a subsidy, benefit or service for which the expenditure is
incurred from the Consolidated Fund of India. Section 3 provides that the
Aadhaar number shall consist of demographic and biometric information of an

541 (1963) 2 SCR 747
542 (1969) 1 SCC 248
543 (1972) 2 SCC 239
544 (2017) 3 SCC 362
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PART J
individual. “Biometric information”, under Section 2(g), means a photograph,
finger print, Iris scan, or such other biological attributes of an individual as
may be specified by regulations. Section 4(3) provides that an Aadhaar
number may be used as a proof of identity “for any purpose”. Section 57
authorizes a body corporate or person to use the Aadhaar number for
establishing the identity of an individual “for any purpose”. The proviso to
Section 57 provides that the use of an Aadhaar number under the Section
shall be subject to the procedure and obligations under Section 8 and Chapter
VI of the Act. Section 8 sets out the procedure for authentication. It states that
for authentication, a requesting entity shall obtain the consent of an individual
before collecting identity information and shall ensure that the identity
information is only used for submission to the Central Identities Data
Repository for authentication. It does not envisage collection of identity
information for any other purpose. Chapter VI of the Act, which deals with
protection of information, provides for security and confidentiality of identity
information collected under the Act, imposes restrictions on sharing that
information and classifies biometrics as sensitive personal information.
301 The scheme of the Aadhaar Act creates a system of identification
through authentication of biometric information and authorises the Central and
State governments to assign the task of collecting individual biometric
information for the purpose of generation of Aadhaar numbers to private
entities. The Act authorises the use of Aadhaar numbers by the Central
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PART J
government, state governments and the private entities for establishing the
identity of a resident for any purpose. The Act also contains certain
safeguards regarding storage and use of biometric information. The actions
taken before the enactment of the Aadhaar Act have to be tested upon the
touchstone of the legal framework provided under the Act.
302 Section 59 is a validating provision. It seeks to validate all the actions of
the Central Government prior to the Aadhaar Act, which were done under the
notifications of 28 January 2009 and 12 September 2015. Section 59 does not
validate actions of the state governments or of private entities. Acts
undertaken by the State governments and by private entities are not saved by
Section 59.
303 The Planning Commission’s notification dated 28 January 2009 created
UIDAI, while giving it the responsibility of laying down a plan and policies to
implement a unique identity (UID) scheme. UIDAI was only authorized to own
and operate the UID database, with a further responsibility for the updation
and maintenance of the database on an ongoing basis. Significantly, the 2009
notification did not contain any reference to the use of biometrics for the
purpose of the generation of Aadhaar numbers. The notification gave no
authority to collect biometrics. Biometrics, finger prints or iris scans were not
within its purview. There was no mention of the safeguards and measures
relating to the persons or entities who would collect biometric data, how the
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PART J
data would be collected and how it would be used. The website of the Press
Information Bureau of the Government of India states that, by the time
Aadhaar Act was notified by the Central government, UIDAI had generated
about 100 crore Aadhaar numbers.545 The collection of biometrics from
individuals prior to the enactment of the Aadhaar Act does not fall within the
scope of the 2009 notification. Having failed to specify finger prints and iris
scans in the notification, the validating provision does not extend to the
collection of biometric data before the Act. The 2009 notification did not
provide authority to any government department or to any entity to collect
biometrics. Since the collection of biometrics was not authorised by the 2009
notification, Section 59 of the Aadhaar Act does not validate these actions.
304 The collection of the biometrics of individuals impacts their privacy and
dignity. Informed consent is crucial to the validity of a state mandated
measure to collect biometric data. Encroachment on a fundamental right
requires the enacting of a valid law by the legislature.546 The law will be valid
only if it meets the requirements of permissible restrictions relating to each of
the fundamental rights on which there is an encroachment. Privacy animates
Part III of the Constitution.547 The invasion of any right flowing from privacy
places a heavy onus upon the State to justify its actions. Nine judges of this
545Press Information Bureau, UIDAI generates a billion (100 crore) Aadhaars A Historic Moment for India,
available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=138555
546A Constitution Bench of this Court in State of Madhya Pradesh v. Thakur Bharat Singh (AIR 1967 SC 1170)
held: “All executive action which operates to the prejudice of any person must have the authority of law to
support it… Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any
person, be supported by some legislative authority.”
547Puttaswamy, at para 272
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Court in Puttaswamy categorically held that there must be a valid law in
existence to encroach upon the right to privacy. An executive notification does
not satisfy the requirement of a valid law contemplated in Puttaswamy. A
valid law, in this case, would mean a law enacted by Parliament, which is just,
fair and reasonable. Any encroachment upon the fundamental right to privacy
cannot be sustained by an executive notification.
There is also no merit in the submission of the Respondents that prior to the
enactment of the Aadhaar Act, no individual has been enrolled under
compulsion, and since all enrolments were voluntary, these cannot be
considered to be in breach of Article 21 or any other fundamental right. The
format of the first two enrolment forms used by UIDAI, under which around 90
crore enrolments were done, had no mention of informed consent or the use
of biometrics. Hence, this submission is rejected.
Apart from the existence of a valid law which authorises an invasion of
privacy, Puttaswamy requires that the law must have adequate safeguards
for the collection and storage of personal data. Data protection, which is
intrinsic to privacy, seeks to protect the autonomy of the individual. The
judgment noted the centrality of consent in a data protection regime. The
Aadhaar Act provides certain safeguards in Section 3(2) and Section 8(3) for
the purposes of ensuring informed consent, and in terms of Section 29 read
with Chapter VII in the form of penalties. The safeguards provided under the
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Act were not in existence before the enactment of the Act. The collection of
biometrics after the 2009 notification and prior to the Aadhaar Act suffers from
the absence of adequate safeguards. While a legislature has the power to
legislate retrospectively, it cannot retrospectively create a deeming fiction
about the existence of safeguards in the past to justify an encroachment on a
fundamental right. At the time when the enrolments took place prior to the
enactment of the Aadhaar Act in September 2016, there was an absence of
adequate safeguards. Section 59 cannot by a deeming fiction, as it were,
extend the safeguards provided under the Act to the enrolments done earlier.
This will be impermissible simply because the informed consent of those
individuals, whose Aadhaar numbers were generated in that period cannot be
retrospectively legislated by an assumption of law. Moreover, it is a principle
of criminal law that it cannot be applied retrospectively to acts which were not
offences at the time when they took place. Article 20(1) of the Constitution
provides that “No person shall be convicted of any offence except for violation
of the law in force at the time of the commission of the act charged as an
offence”. The application of the criminal provisions of the Act, provided under
Chapter VII of the Act which deals with “Offences and Penalties”, cannot be
extended to the period prior to the enactment of the Aadhaar Act.
305 The Respondents submit that the collection of biometrics prior to the
Aadhaar Act was adequately safeguarded by the provisions of the Information
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Technology Act 2000; specifically those provisions, which were inserted or
amended by the Information Technology (Amendment) Act, 2008.
Section 43A of the Act provides for compensation for failure to protect data:
“Where a body corporate, possessing, dealing or handling

any sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security practices
and procedures and thereby causes wrongful loss or wrongful
gain to any person, such body corporate shall be liable to pay
damages by way of compensation to the person so affected.
Explanation: For the purposes of this section,-

(i) “body corporate” means any company and includes a firm,
sole proprietorship or other association of individuals
engaged in commercial or professional activities;
(ii) “reasonable security practices and procedures” means
security practices and procedures designed to protect such
information from unauthorised access, damage, use,
modification, disclosure or impairment, as may be specified in
an agreement between the parties or as may be specified in
any law for the time being in force and in the absence of such
agreement or any law, such reasonable security practices
and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or
associations as it may deem fit.
(iii) “sensitive personal data or information” means such

personal information as may be prescribed by the Central
Government in consultation with such professional
bodies or associations as it may deem fit.”
(Emphasis supplied)
306 Rule 3 of the Information Technology (Reasonable Security Practices
and Procedures and Sensitive Personal Data or Information) Rules, 2011
made by the Central government under Section 43A, defines “sensitive
personal data or information”:
“Sensitive personal data or information of a person means

such personal information which consists of information
relating to;—
(i) password;
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(ii) financial information such as Bank account or credit

card or debit card or other payment instrument details ;
(iii) physical, physiological and mental health condition;
(iv) sexual orientation;
(v) medical records and history;
(vi) Biometric information;
(vii) any detail relating to the above clauses as provided to
body corporate for providing service; and
(viii) any of the information received under above clauses
by body corporate for processing, stored or processed under
lawful contract or otherwise.
Provided that, any information that is freely available or

accessible in public domain or furnished under the Right to
Information Act, 2005 or any other law for the time being in
force shall not be regarded as sensitive personal data or
information for the purposes of these rules.”
Section 66C provides a punishment for identity theft:
“66C. Punishment for identity theft.-

Whoever, fraudulently548 or dishonestly549 make use of the
electronic signature, password or any other unique
identification feature of any other person, shall be punished
with imprisonment of either description for a term which may
extend to three years and shall also be liable to fine which
may extend to rupees one lakh.” (Emphasis supplied)
Section 66E provides for punishment for the violation of the privacy of an
individual:
“Whoever, intentionally or knowingly captures, publishes or

transmits the image of a private area of any person without
his or her consent, under circumstances violating the privacy
of that person, shall be punished with imprisonment which
may extend to three years or with fine not exceeding two lakh
rupees, or with both.”
The explanation to the Section provides that “transmit” means to electronically
send a visual image with the intent that it be viewed by a person or persons.
548Section 25, Indian Penal Code states: ““Fraudulently”.—A person is said to do a thing fraudulently if he does
that thing with intent to defraud but not otherwise”
549Section 24, Indian Penal Code states: ““Dishonestly”- Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”
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“Capture”, with respect to an image, has been defined to mean videotaping,
photographing, filming or recording by any means. “Private area” means the
“naked or undergarment clad genitals, pubic area, buttocks or female breast.”
“Publishes” has been defined as reproduction in the printed or electronic form
and making it available for public.
Section 72A provides for punishment for disclosure of information in breach of
a lawful contract:
“Save as otherwise provided in this Act or any other law for

the time being in force, any person including an intermediary
who, while providing services under the terms of lawful
contract, has secured access to any material containing
personal information about another person, with the intent to
cause or knowing that he is likely to cause wrongful loss or
wrongful gain discloses, without the consent of the person
concerned, or in breach of a lawful contract, such material to
any other person shall be punished with imprisonment for a
term which may extend to three years, or with a fine which
may extend to five lakh rupees, or with both.” (Emphasis
supplied)
Section 43A applies only to bodies corporate and has no application to
government or to its departments. Explanation (i) defines body corporate to
mean any company and to include a firm, sole proprietorship or other
association of individuals engaged in professional or commercial activities.
Personal information leaked or lost by government agencies will not be
covered under Section 43A. The scope of Section 66E is limited. It only deals
with the privacy of the “private area” of any person. It does not deal with
informational privacy. The scope of Section 72A is also limited. It only
penalises acts of disclosing personal information about a person obtained
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while providing services under a lawful contract. Section 66C deals with
identity theft and punishes the dishonest or fraudulent use of the unique
identification feature of a person. The Information Technology Act also does
not penalise unauthorised access to the Central Identities Data Repository.
Many of the safeguards which were introduced by the Aadhaar Act were not
comprehended in the provisions of the Information Technology Act. Indeed, it
was the absence of those safeguards in the Information Technology Act which
required their introduction in the Aadhaar Act. Hence, the Attorney General is
not correct in submitting that India operated under a regime of comprehensive
safeguards governing biometric data during the period when the Aadhaar
project was governed by an executive notification, in the absence of a
legislative framework. The absence of a legislative framework rendered the
collection of biometric data vulnerable to serious violations of privacy. There
are two distinct facets here. First, the absence of a legislative framework for
the Aadhaar project between 2009 and 2016 left the biometric data of millions
of Indian citizens bereft of the kind of protection which a law, as envisaged in
Puttaswamy, must provide to comprehensively protect and enforce the right
to privacy. Second, the notification of 2009 does not authorise the collection of
biometric data. Consequently, the validation of actions taken under the 2009
notification by Section 59 does not save the collection of biometric data prior
to the enforcement of the Act. Privacy is of paramount importance. No
invasion of privacy can be allowed without proper, adequate and stringent
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safeguards providing not only penalties for misuse or loss of one’s personal
information, but also for protection of that person.
307 The Respondents have relied upon several judgments where this Court
has upheld validating statutes, which, they contend, are similar to Section 59.
The first decision which needs to be discussed is the judgment of the
Constitution Bench in West Ramnad, which dealt with a validating statute of
the Madras Legislature. Act 43 of 1949 of the Madras Legislature which
sought to acquire electricity undertakings in the state was struck down for
want of legislative competence. In the meantime, the Constitution came into
force, and under the Seventh Schedule, the State acquired legislative
competence. A fresh law was enacted in 1954. Section 24 sought to validate
actions done and taken under the 1949 Act. Section 24 provided thus:
“Orders made, decisions or directions given, notifications

issued, proceedings taken and acts or things done, in relation
to any undertaking taken over, if they would have been
validly made, given, issued, taken or done, had the
Madras Electricity Supply Undertakings (Acquisition) Act
1949 (Madras Act 43 of 1949), and the rules made
thereunder been in force on the date on which the said
orders, decisions or directions, notifications, proceeding, acts
or things were made, given, issued, taken or done are hereby
declared to have been validly made, given, issued, taken
or done, as the case may be, except to the extent to
which the said orders, decisions, directions,
notifications, proceedings, acts or things are repugnant
to the provisions of this Act.” (Emphasis supplied)
Section 24 was held to be a provision, which saved and validated actions
validly taken under the provisions of the earlier Act, which was invalid from the
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inception. Justice Gajendragadkar, speaking for the Court, interpreted Section
24 thus:
“12. The first part of the section deals, inter alia, with
notifications which have been validly issued under the
relevant provisions of the earlier Act and it means that if
the earlier Act had been valid at the relevant time, it ought to
appear that the notifications in question could have been and
had in fact been made properly under the said Act. In other
words, before any notification can claim the benefit of
Section 24, it must be shown that it was issued properly
under the relevant provisions of the earlier Act, assuming
that the said provisions were themselves valid and in
force at that time. The second part of the section provides
that the notifications covered by the first part are declared by
this Act to have been validly issued; the expression “hereby
declared” clearly means “declared by this Act” and that shows
that the notifications covered by the first part would be treated
as issued under the relevant provisions of the Act and would
be treated as validly issued under the said provisions. The
third part of the section provides that the statutory declaration
about the validity of the issue of the notification would be
subject to this exception that the said notification should not
be inconsistent with or repugnant to the provisions of the Act.
In other words, the effect of this section is that if a
notification had been issued properly under the
provisions of the earlier Act and its validity could not
have been impeached if the said provisions were
themselves valid, it would be deemed to have been
validly issued under the provisions of the Act, provided,
of course, it is not inconsistent with the other provisions
of the Act. The section is not very happily worded, but on its
fair and reasonable construction, there can be no doubt about
its meaning or effect.” (Emphasis supplied)
308 The second decision is a four judge Bench judgment in Chetty, which
dealt with the competence of a legislature to remedy a discriminatory
procedure retrospectively. There were two Acts in Mysore for acquisition of
private land for public purposes − the Mysore Land Acquisition Act, 1894 and
the City of Bangalore Improvement Act, 1945. The respondent challenged a
notification which was issued under the 1894 Act for the acquisition of his land
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in Bangalore, on the ground that recourse to the provisions of the Land
Acquisition Act was discriminatory because in other cases the provisions of
the Improvement Act were applied. The High Court accepted the contention,
against which there was an appeal to this Court. During the pendency of the
appeal, the Bangalore Acquisition of Lands (Validation) Act, 1962 was
passed. The 1962 Act contained two provisions. Section 2 provided:
“2. Validation of certain acquisition of lands and proceedings

and orders connected therewith.-
(1) Notwithstanding anything contained in the City of
Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945),
or in any other law, or in any judgment, decree or order of
any court:
(a) every acquisition of land for the purpose of
improvement, expansion or development of the City of
Bangalore or any area to which the City of Bangalore
Improvement Act, 1945, extends, made by the State
Government acting or purporting to act under the
Mysore Land Acquisition Act, 1894 (Mysore Act 7 of
1894), at any time before the commencement of this
Act, and every proceeding held, notification issued and
order made in connection with the acquisition of land for
the said purpose shall be deemed for all purposes to
have been validly made, held to issue, as the case
may be, and any acquisition proceeding
commenced under the Mysore Land Acquisition
Act, 1894, for the said purpose before the
commencement of this Act but not concluded before
such commencement, may be continued under the
Land Acquisition Act, 1894 (Central Act 1 of 1894), as
extended to the State of Mysore by the Land Acquisition
(Mysore Extension and Amendment) Act, 1961, and
accordingly no acquisition so made, no proceeding
held, no notification issued and no order made by the
State Government or by any authority under the Mysore
Land Acquisition Act, 1894, or the Land Acquisition Act,
1894, in connection with any such acquisition shall be
called in question on the ground that the State
Government was not competent to make acquisition of
land for the said purpose under the said Act or on any
other ground whatsoever;
(b) any land to the acquisition of which the provisions of
clause (a) are applicable shall, after it has vested in the
State Government, be deemed to have been
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transferred, or stand transferred, as the case may be, to

the Board of Trustees for the improvement of the City of
Bangalore.” (Emphasis supplied)
The Act of 1962 validated all acquisitions made, proceedings held,
notifications issued or orders made under the Mysore Land Acquisition Act
before the validating law came into force. The Validation Act was challenged
on the ground that it was discriminatory to provide two Acts which prescribed
two different procedures under the acquisition laws in the same field. This
Court found that the legislature retrospectively made a single law for the
acquisition of properties and upheld the validating Act. It was held:
“15. If two procedures exist and one is followed and the other
discarded, there may in a given case be found discrimination.
But the Legislature has still the competence to put out of
action retrospectively one of the procedures leaving one
procedure only available, namely, the one followed and thus
to make disappear the discrimination. In this way a Validating
Act can get over discrimination. Where, however, the
legislative competence is not available, the discrimination
must remain for ever, since that discrimination can only be
removed by a legislature having power to create a single
procedure out of two and not by a legislature which has not
that power.”
309 In West Ramnad, the validation depended upon the condition that a
notification or act ought to have been validly issued or done under the earlier
statute, presuming that the earlier Act was itself valid at that time. In the
present case, there was no earlier law governing the actions of the
government for the collection of biometric data. The Aadhaar Act was notified
in 2016. The Planning Commission’s notification of 2009 and the Ministry of
Information and Technology’s notification of 2015 were not issued under any
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statute. Therefore, the validating law in West Ramnad was clearly of a
distinct genre. West Ramnad will be of no assistance to the Union of India.
310 The decision in Chetty in fact brings out the essential attributes of a
validating law. The existence of two legislations governing the field of land
acquisition had been found to be discriminatory and hence violative of Article
14 by the High Court (on the basis of the position in law as it then stood).
During the pendency of the appeal before this Court, the legislature enacted a
validating law which removed the cause for invalidity. The reason the state
law had been invalidated by the High Court was the existence of two laws
governing the same field. This defect was removed. To use the words of this
Court, the legislature “put out of action retrospectively one of the procedures”
as a result of which only one procedure was left in the field. The decision in
Chetty thus brings out the true nature of a validating law. A validating law
essentially removes the deficiency which is found to exist in the earlier
enactment. By curing the defect, it validates actions taken under a previous
enactment.
311 The third judgment of seven judges is in Hari Singh. The
constitutionality of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1958 was challenged on the ground that Section 5(1) contravened Article
14. Section 5(1) conferred power on the Estate Officer to make an order of
eviction against persons who were in unauthorised occupation of public
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premises. During the pendency of the appeal before this Court, the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 was enacted, which
validated all actions taken under the Act of 1958. The constitutional validity of
the 1971 Act was also challenged. Section 20 of the later Act provided:
“Notwithstanding any judgment, decree or order of any court,

anything done or any action taken (including rules or
orders made, notices issued, evictions ordered or effected,
damages assessed, rents or damages or costs recovered and
proceedings initiated) or purported to have been done or
taken under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1958 shall be deemed to
be as valid and effective as if such thing or action was
done or taken under the corresponding provisions of this
Act which, under Sub-section (3) of Section 1 shall be
deemed to have come into force on the 16th day of
September, 1958 ...” (Emphasis supplied)
The Court held that the legislature has the power to validate actions under an
earlier law by removing its infirmities. In that case, validation was achieved by
enacting the 1971 Act with retrospective effect from 1958 and legislating that
actions taken under the earlier law will be deemed to be as valid and effective
as if they were taken under the 1971 Act. The Court held:
“24. The 1958 Act has not been declared by this Court to be
unconstitutional… The arguments on behalf of the appellants
therefore proceeded on the footing that the 1958 Act will be
presumed to be unconstitutional. It was therefore said that the
1971 Act could not validate actions done under the 1958 Act.
The answer is for the reasons indicated above that the
Legislature was competent to enact this legislation in 1958
and the Legislature by the 1971 Act has given the legislation
full retrospective operation. The Legislature has power to
validate actions under an earlier Act by removing the
infirmities of the earlier Act. The 1971 Act has achieved that
object of validation.”
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The Court approved the Constitution Bench decision in West Ramnad:
“16. The ruling of this Court in West Ramnad Electric

Distribution Co. Ltd. case establishes competence of the
legislature to make laws retrospective in operation for the
purpose of validation of action done under an earlier Act
which has been declared by a decision of the court to be
invalid. It is to be appreciated that the validation is by virtue of
the provisions of the subsequent piece of legislation.”
In Hari Singh, the validating Act retrospectively authorised the actions
undertaken under the previous Act, which had been invalidated by a court
decision. The validating law of 1971 was enacted with retrospective effect
from 1958.
312 Reliance was placed by the Respondents on the judgments of this
Court in Jaora Sugar Mills (P) Ltd. v State of Madhya Pradesh550 (Jaora
Sugar Mills), SKG Sugar Ltd. v State of Bihar551 (“SKG Sugar”) and
Krishna Chandra Gangopadhyaya v Union of India552 (“Krishna
Chandra”), to contend that in the case of fiscal legislation, where an
enactment was struck down for violating Article 265 or the fundamental
rights, of a citizen, validating Acts were enacted after removing the flaw and
that in cases where the state Legislature was held to be incompetent to enact
a taxing measure, a validating law was enacted by Parliament by making a
substantive provision.
550 (1966) 1 SCR 523

551 (1974) 4 SCC 827
552 (1975) 2 SCC 302
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313 In Jaora Sugar Mills, a state law imposing cess was struck down for
want of legislative competence. Parliament enacted the Sugarcane Cess
(Validation) Act, 1961 to validate the imposition of cess under the invalidated
state law. Section 3(1) of the 1961 Act provided:
“12…Notwithstanding any judgment, decree or order of any

Court, all cesses imposed, assessed or collected or
purporting to have been imposed, assessed or collected
under any State Act before the commencement of this act
shall be deemed to have been validly imposed, assessed
or collected in accordance with law, as if the provisions of
the State Acts and of all notifications, orders and rules
issued or made thereunder, in so far as such provisions relate
to the imposition, assessment and collection of such cess had
been included in and formed part of this section and this
section had been in force at all material times when such
cess was imposed, assessed or collected; ….”
(Emphasis supplied)
The Section was upheld. Speaking for the Constitution Bench, Chief Justice
Gajendragadkar held:
“14... What Parliament has done by enacting the said section

is not to validate the invalid State Statutes, but to make a law
concerning the cess covered by the said Statutes and to
provide that the said law shall come into operation
retrospectively. There is a radical difference between the
two positions. Where the legislature wants to validate an
earlier Act which has been declared to be invalid for one
reason or another, it proceeds to remove the infirmity from the
said Act and validates its provisions which are free from any
infirmity.” (Emphasis supplied)
The state law was held to be invalid for want of legislative competence.
Parliament, which was competent to enact a law on the subject, did so with
retrospective effect and validated actions which were taken under the invalid
state law.
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314 In SKG Sugar, a state law - Bihar Sugar Factories Control Act, 1937 -
was declared unconstitutional. In 1969, during President's Rule in Bihar,
Parliament enacted the Bihar Sugarcane (Regulation of Supply and
Purchase) Act, 1969. Section 66(1) of the Act provided:
“12…Notwithstanding any judgment, decree or order of any

court, all cesses and taxes imposed, assessed or collected
or purporting to have been imposed, assessed or collected
under any State law, before the commencement of this Act,
shall be deemed to have been validly imposed, assessed
or collected in accordance with law as if this Act had been
in force at all material times when such cess or tax was
imposed, assessed or collected and accordingly....” 553
(Emphasis supplied)
The Constitution Bench held:
“32… By virtue of the legal fiction introduced by the validating

provision in Section 66(1), the impugned notification will be
deemed to have been issued not necessarily under the
Ordinance No. 3 of 1968 but under the President's Act, itself,
deriving its legal force and validity directly from the latter.”554
315 In Krishna Chandra, provisions of the Bihar Land Reforms Act, 1950
were struck down for want of legislative competence. Parliament enacted the
Mines and Minerals (Regulation and Development) Act, 1957 to validate those
provisions with retrospective effect. Section 2 provided that:
“1…(2). Validation of certain Bihar State laws and action

taken and things done connected therewith.-
(1) The laws specified in the schedule shall be and shall
be deemed always to have been, as valid as if the
provisions contained therein had been enacted by
Parliament.
(2) Notwithstanding any judgment, decree or order of any
court, all actions taken, things done, rules made,
notifications issued or purported to have been taken, done,

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made or issued and rents or royalties realised under any

such laws shall be deemed to have been validly taken,
done, made, issued or realised, as the case may be, as if this
section had been in force at all material times when such
action was taken, things were done, rules were, made,
notifications were issued, or rents or royalties were realised,
and no suit or other proceedings shall be maintained or
continued in any court for the refund of rents or royalties
realised under any such laws.
(3) For the removal of doubts, it is hereby declared that
nothing in Sub-section (2) shall be construed as preventing
any person from claiming refund of any rents or royalties paid
by him in excess of the amount due from him under any such
laws.”555 (Emphasis supplied)
The central issue in the case was whether a statute and a rule earlier
declared to be unconstitutional or invalid, can be retroactively enacted through
fresh validating legislation by the competent Legislature. The Court held that it
could be.
316 Section 59 of the Aadhaar Act is different from the validating provisions
in Jaora Sugar Mills, SKG Sugar and Krishna Chandra. In those cases,
state laws were invalid for want of legislative competence. Parliament, which
undoubtedly possessed legislative competence, could enact a fresh law with
retrospective effect and protect actions taken under the state law. The
infirmity being that the earlier laws were void for absence of competence in
the legislature, the fresh laws cured the defect of the absence of legislative
competence.
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317 Parliament and the State Legislatures have plenary power to legislate
on subjects which fall within their legislative competence. The power is
plenary because the legislature can legislate with prospective as well as with
retrospective effect. Where a law suffers from a defect or has been
invalidated, it is open to the legislature to remove the defect. While doing that,
the legislature can validate administrative acts or decisions made under the
invalid law in the past. The true test of a validation is that it must remove the
defects in the earlier law. It is not enough for the validating law to state that
the grounds of invalidity of the earlier law are deemed to have been removed.
The validating law must remove the deficiencies. There were several
deficiencies in the collection of biometric data during the period between 2009
and 2016, before the Aadhaar Act came into force. The first was the absence
of enabling legislation. As a result, the collection of sensitive personal
information took place without the authority of law. Second, the notification of
2009 did not authorize the collection of biometric data. Third, the collection of
biometric data was without an enabling framework of the nature which the
Aadhaar Act put into place with effect from 2016. The Aadhaar Act introduced
a regime for obtaining informed consent, securing the confidentiality of
information collected from citizens, penalties and offences for breach and
regulated the uses to which the data which was collected could be put. In the
absence of safeguards, the collection of biometric data prior of the enactment
of Aadhaar Act 2016 is ultra vires.
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318 Section 59 does not remove the cause for invalidity. First, Section 59
protects actions taken under the notification of 2009. The notification does not
authorize the collection of biometric data. Hence, Section 59 would not
provide legal authority for the collection of biometrics between 2009 and 2016.
Second, it was through the Aadhaar Act, that safeguards were sought to be
introduced for ensuring informed consent, confidentiality of information
collected, restrictions on the use of the data and through a regime of penalties
and offences for violation. Section 59 does not cure the absence of these
safeguards between 2009 and 2016. Section 59 fails to meet the test of a
validating law for the simple reason that the absence of safeguards and of a
regulatory framework is not cured merely by validating what was done under
the notifications of 2009 and 2016. There can be no dispute about the
principle that the legislature is entitled to cure the violation of a fundamental
right. But in order to do so, it is necessary to cure the basis or the foundation
on which there was a violation of the fundamental right. The deficiency must
be demonstrated to be cured by the validating law. Section 59 evidently fails
to do so. It fails to remedy the deficiencies in regard to the conditions under
which the collection of biometric data took place before the enforcement of the
Aadhaar Act in 2016.
The Respondents submitted that Section 59 creates a deemed fiction and
cited a few judgments in support of this contention. In Bishambhar Nath
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Kohli v State of Uttar Pradesh556, an Ordinance repealed another
Ordinance. Section 58(3) of the repealing Ordinance stated:
“6…The repeal by this Act of the Administration of Evacuee

Property Ordinance, 1949 or the Hyderabad Administration of
Evacuee Property Regulation or of any corresponding law
shall not affect the previous operation of that Ordinance,
Regulation or corresponding law, and subject thereto,
anything done or any action taken in the exercise of any
power conferred by or under that Ordinance, Regulation
or corresponding law, shall be deemed to have been
done or taken in the exercise of the powers conferred by
or under this Act as if this Act were in force on the day
on which such thing was done or action was taken.”
(Emphasis supplied)
319 A Constitution Bench of this Court held that by virtue of Section 58, all
things done and actions taken under the repealed ordinance are deemed to
be done or taken in exercise of the powers conferred by the repealing Act, as
if that Act were in force on the day on which that thing was done or action was
taken. The things done or actions taken under the repealed ordinance are to
be deemed by fiction to have been done or taken under the repealing Act. The
actions were validated because the Act, in this case, was deemed to be “in
force on the day on which such thing was done or action was taken”. Section
59 of the Aadhaar Act does not create this fiction. The Aadhaar Act does not
come in force on the date on which the actions, which this Section seeks to
validate, were taken.
320 A three judge Bench headed by one of us, Hon’ble Mr Justice Dipak
Misra (as the learned Chief Justice then was) in State of Karnataka v State
556 (1966) 2 SCR 158
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of Tamil Nadu557, was dealing with a batch of civil appeals filed against a final
order of the Cauvery Water Disputes Tribunal constituted under the Inter-
State River Water Disputes Act, 1956. Section 6(2) of the 1956 Act provides:
“72…6(2).The decision of the Tribunal, after its publication in

the Official Gazette by the Central Government under Sub-
section (1), shall have the same force as an order or decree
of the Supreme Court.”558
Relying on Section 6(2), it was contended that the jurisdiction of this Court is
ousted as it cannot sit in appeal on its own decree. The Court did not accept
the submission and held:
“74. The language employed in Section 6(2) suggests that the

decision of the tribunal shall have the same force as the order
or decree of this Court. There is a distinction between having
the same force as an order or decree of this Court and
passing of a decree by this Court after due adjudication. The
Parliament has intentionally used the words from which it can
be construed that a legal fiction is meant to serve the purpose
for which the fiction has been created and not intended to
travel beyond it. The purpose is to have the binding effect of
the tribunal's award and the effectiveness of enforceability.
Thus, it has to be narrowly construed regard being had to the
purpose it is meant to serve…559
81…it is clear as crystal that the Parliament did not intend to

create any kind of embargo on the jurisdiction of this Court.
The said provision was inserted to give the binding effect to
the award passed by the tribunal. The fiction has been
created for that limited purpose.”560 (Emphasis supplied)
The judgment makes it clear that a deeming fiction cannot travel beyond what
was originally intended. As stated earlier, the action of collecting and
authentication of biometrics or the requirement of informed consent finds no
557 (2017) 3 SCC 362

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mention in the 2009 notification. Therefore, Section 59 cannot be held to
create a deeming fiction that all the actions taken under the notifications
issued were done under the Act and not under the aforesaid notifications.
321 This Court must also deal with the Respondents’ submission that
Parliament is not debarred from enacting a validation law even though the
Court did not have the opportunity to rule on the validity of the notifications
which are purported by Section 59 to have been validated. The Respondents
have placed reliance on a two judge Bench decision in Amarendra Kumar
Mohapatra v State of Orissa.561 This case involved a challenge to the
constitutional validity of the Orissa Service of Engineers (Validation of
Appointment) Act, 2002 enacted to regularise ad hoc appointments of
employees. The issue before the Court was whether the Orissa Act was in
effect a validation statute to validate any illegality or defect in a pre-existing
Act or rule in existence. The Court held that since the Orissa Act merely
regularised the appointment of graduate Stipendiary Engineers working as ad
hoc Assistant Engineers as Assistant Engineers, it could not be described as
a validating law. It was held the legislation did not validate any such non-
existent act, but simply appointed the ad hoc Assistant Engineers as
substantive employees of the State by resort to a fiction. This Court held:
“31…a prior judicial pronouncement declaring an act,

proceedings or rule to be invalid is not a condition precedent
for the enactment of a Validation Act. Such a piece of
legislation may be enacted to remove even a perceived
invalidity, which the Court has had no opportunity to adjudge.
561 (2014) 4 SCC 583
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Absence of a judicial pronouncement is not, therefore, of

much significance for determining whether or not the
legislation is a validating law.”562
The Court further held that:
“25. … when the validity of any such Validation Act is called in

question, the Court would have to carefully examine the
law and determine whether (i) the vice of invalidity that
rendered the act, rule, proceedings or action invalid has
been cured by the validating legislation (ii) whether the
legislature was competent to validate the act, action,
proceedings or rule declared invalid in the previous
judgments and (iii) whether such validation is consistent
with the rights guaranteed by Part III of the Constitution.
It is only when the answer to all these three questions is in
the affirmative that the Validation Act can be held to be
effective and the consequences flowing from the adverse
pronouncement of the Court held to have been neutralised.”
(Emphasis supplied)
322 The two judge Bench relied upon the Constitution Bench decision of
this Court in Shri Prithvi Cotton Mills Ltd v Broach Borough
Municipality563 to formulate the following pre-requisites of a piece of
legislation that purports to validate any act, rule, action or proceedings:
“(a) The legislature enacting the Validation Act should be

competent to enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act or the
proceedings needs to be removed.”
These judgments suggest that while there can be no disagreement with the
proposition that a legislature has the power, within its competence, to make a
law to validate a defective law, the validity of such a law would depend upon
whether it removes the cause of ineffectiveness or invalidity of the previous

563 (1969) 2 SCC 283
438
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Act or proceedings. Parliament has the power to enact a law of validation to
cure an illegality or defect in the pre-existing law, with or without a judicial
determination. But that law should cure the cause of infirmity or invalidity.
Section 59 fails to cure the cause of invalidity prior to the enactment of the
Aadhaar Act.
K Rule of law and violation of interim orders
323 The rule of law is the cornerstone of modern democratic societies and
protects the foundational values of a democracy. When the rule of law is
interpreted as a principle of constitutionalism, it assumes a division of
governmental powers or functions that inhibits the exercise of arbitrary State
power. It also assumes the generality of law: the individual's protection from
arbitrary power consists in the fact that her personal dealings with the State
are regulated by general rules, binding on private citizens and public officials
alike.564
It envisages a fundamental separation of powers among different organs of
the State. Separation of power supports the accountability aspect of the rule of
law. Separation of the judicial and executive powers is an essential feature of
the rule of law. By entrusting the power of judicial review to courts, the
doctrine prevents government officials from having the last word on whether
564T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law

(2001), available at
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199267880.001.0001/acprof-9780199267880-
chapter-2
439
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they have acted illegally. The separation of judicial power provides an
effective check on the executive branch.565
324 The concepts of the rule of law and separation of powers have been
integral to Indian constitutional discourse. While both these concepts have not
been specified in as many words in the Constitution, they have received
immense attention from this Court in its judgments. Though the Indian
Constitution does not follow the doctrine of separation of powers in a rigid
sense, the following statement of the law by Chief Justice Mukherjea in Ram
Sahib Ram Jawaya Kapur v State of Punjab566 is widely regarded as
defining the core of its content:
“12…The Indian Constitution has not indeed recognised the

doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions
that essentially belong to another...”
Separation of powers envisages a system of checks and balances, which
ensures governance by law and not by the caprice of those to whom
governance is entrusted for the time being. By curbing excesses of power, it
has a direct link with the preservation of institutional rectitude and individual
liberty. In S G Jaisinghani v Union of India567, this Court held that:
“14. In this context it is important to emphasize that the

absence of arbitrary power is the first essential of the rule of
565Denise Meyerson, The Rule of Law and the Separation of Powers (2004), available at
http://www5.austlii.edu.au/au/journals/MqLJ/2004/1.html
566 (1955) 2 SCR 225
567 (1967) 2 SCR 703
440
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law upon which our whole constitutional system is based. In a

system governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly
defined limits. The rule of law from this point of view means
that decisions should be made by the application of known
principles and rules and, in general, such decisions should be
predictable and the citizen should know where he is. If a
decision is taken without any principle or without any rule it is
unpredictable and such a decision is the antithesis of a
decision taken in accordance with the Rule of law…”
The separation of powers between the legislature, the executive and the
judiciary has been declared to be part of the basic structure of the
Constitution. In Kesavananda Bharati v State of Kerala568, Chief Justice
Sikri held that:
“292…The basic structure may be said to consist of the

following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the
executive and the judiciary;
(5) Federal character of the Constitution.”569
(Emphasis supplied)
Justice HR Khanna held that the rule of law meant “supremacy of the
Constitution and the laws as opposed to arbitrariness”570. The same view is
expressed in subsequent decisions of this Court.571 In Smt Indira Nehru
Gandhi v Shri Raj Narain572, Chief Justice AN Ray held the rule of law to be
the basis of democracy.
568 (1973) 4 SCC 225

571Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1975 (Supp.) SCC 1; State of Bihar v. Bal Mukund Sah, (2000) 4
SCC 640]; I .R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu, (2007) 2 SCC 1.
572 1975 Supp SCC 1
441
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The functional relationship between separation of powers and the rule of law
was discussed by a Constitution Bench of this Court in State of Tamil Nadu v
State of Kerala573, as follows:
“98. Indian Constitution, unlike the Constitution of United

States of America and Australia, does not have express
provision of separation of powers. However, the structure
provided in our Constitution leaves no manner of doubt that
the doctrine of separation of powers runs through the Indian
Constitution. It is for this reason that this Court has
recognized separation of power as a basic feature of the
Constitution and an essential constituent of the rule of law.
The doctrine of separation of powers is, though, not expressly
engrafted in the Constitution, its sweep, operation and
visibility are apparent from the Constitution. Indian
Constitution has made demarcation without drawing formal
lines between the three organs--legislature, executive and
judiciary.”
This Court has consistently held judicial review to be an essential component
of the separation of powers as well as of the rule of law. Judicial review
involves determination not only of the constitutionality of law but also of the
validity of administrative action. It protects the essence of the rule of law by
ensuring that every discretionary power vested in the executive is exercised in
a just, reasonable and fair manner.
325 In a reference574 under Article 143 of the Constitution, a seven judge
Bench held that irrespective of “whether or not there is distinct and rigid
separation of powers under the Indian Constitution”, the judicature has been
entrusted the task of construing the provisions of the Constitution and of
safeguarding the fundamental rights of citizens. It was held:
573 (2014)12 SCC 696

574 (1965) 1 SCR 413
442
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“41…When a statute is challenged on the ground that it has

been passed by Legislature without authority, or has
otherwise unconstitutionally trespassed on fundamental
rights, it is for the courts to determine the dispute and decide
whether the law passed by the legislature is valid or not… If
the validity of any law is challenged before the courts, it is
never suggested that the material question as to whether
legislative authority has been exceeded or fundamental rights
have been contravened, can be decided by the legislatures
themselves. Adjudication of such a dispute is entrusted solely
and exclusively to the Judicature of this country…”
In his celebrated dissent in Additional District Magistrate, Jabalpur v
Shivakant Shukla575, Justice HR Khanna, while referring to the rule of law as
the “antithesis of arbitrariness”, held:
“527…Rule of law is now the accepted norm of all civilised

societies... [E]verywhere it is identified with the liberty of the
individual. It seeks to maintain a balance between the
opposing notions of individual liberty and public order. In
every State the problem arises of reconciling human rights
with the requirements of public interest. Such harmonising
can only be attained by the existence of independent courts
which can hold the balance between citizen and State and
compel Governments to conform to the law.”576
326 Judicial review has been held to be one of the basic features of the
Constitution. A seven judge Bench of this Court, in L Chandra Kumar v
Union of India577, declared:
“78… the power of judicial review over legislative action

vested in the High Courts under Article 226 and in the
Supreme Court under Article 32 of the Constitution is an
integral and essential feature of the Constitution, constituting
part of its basic structure.”578
575 (1976) 2 SCC 521

577 (1997) 3 SCC 261
443
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The complementary relationship between judicial review, the rule of law and
the separation of powers is integral to working of the Constitution. This Court
in I R Coelho v State of Tamil Nadu579 held thus:
“129… Equality, rule of law, judicial review and separation of

powers form parts of the basic structure of the Constitution.
Each of these concepts are intimately connected. There can
be no rule of law, if there is no equality before the law. These
would be meaningless if the violation was not subject to the
judicial review. All these would be redundant if the legislative,
executive and judicial powers are vested in one organ.
Therefore, the duty to decide whether the limits have been
transgressed has been placed on the judiciary.”580
Judicial review, by protecting individual rights, promotes the foundational
values of the Constitution and the rule of law. This Court took note of this
aspect in Puttaswamy:
“295. Above all, it must be recognized that judicial review is a

powerful guarantee against legislative encroachments on life
and personal liberty. To cede this right would dilute the
importance of the protection granted to life and personal
liberty by the Constitution. Hence, while judicial review in
constitutional challenges to the validity of legislation is
exercised with a conscious regard for the presumption of
constitutionality and for the separation of powers between the
legislative, executive and judicial institutions, the
constitutional power which is vested in the Court must be
retained as a vibrant means of protecting the lives and
freedoms of individuals.”581
327 Constitutional adjudication facilitates answers to the silences of the
Constitution. The task of interpretation is to foster the spirit of the Constitution
as much as its text. This role has exclusively been conferred on the Supreme
Court and the High Courts to ensure that its values are not diminished by the
579 (2007) 2 SCC 1

444
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legislature or the executive. Our Court has been conscious of this role. In
Krishna Kumar Singh v State of Bihar582, while dealing with the question
whether an ordinance (promulgated by the Governor) which has a limited life
can bring about consequences for the future (in terms of the creation of rights,
privileges, liabilities and obligations) which will enure beyond its life, a seven
judge Bench held that:
“91…The silences of the Constitution must be imbued

with substantive content by infusing them with a
meaning which enhances the Rule of law. To attribute to
the executive as an incident of the power to frame
ordinances, an unrestricted ability to create binding effects for
posterity would set a dangerous precedent in a parliamentary
democracy. The court's interpretation of the power to frame
ordinances, which originates in the executive arm of
government, cannot be oblivious to the basic notion that the
primary form of law making is through the legislature...”583
(Emphasis supplied)
The Court held that the ordinance making power must be carefully structured
to ensure that it remains what the framers of our Constitution intended it to be:
an exceptional power to meet a constitutional necessity.
328 In a constitutional democracy, the power of government, is defined,
limited, and distributed by the fundamental norms of the Constitution. A
constitutional democracy holds its political regime accountable, responsible, or
answerable for its decisions and actions while in public office. 584 A
582 (2017) 3 SCC 1

584 Almon Leroy Way, Jr., Constitutional Democracy & Other Political Regimes, available at
http://www.proconservative.net/CUNAPolSci201PartTWOA.shtml
445
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constitutional democracy determines the degree and manner of distribution of
political authority among the major organs or parts of the government. The
limits of each institution are set by the Constitution. No institution which has
been created by the Constitution can have absolute power. Separation of
powers, envisaged by the Constitution between different institutions acts as a
check and balance among the institutions and promotes the rule of law by
ensuring that no institution can act in an arbitrary manner. Judicial review as
a part of the basic structure of the Indian Constitution and as an essential
component of the rule of law and separation of powers, is intended to ensure
that every institution acts within its limits. Judicial review promotes
transparency, consistency and accountability in the administration of law, and
notions of equity, justice and fairness585. Constitutionalism thus puts a legal
limitation on the government. It envisages the existence of limited
government. Discretion conferred upon an institution of governance, be it the
legislature or the executive, is confined within clearly defined limits of the
Constitution. Not only are the organs of the State required to operate within
their defined legitimate spheres; they are bound to exercise their powers
within these spheres without violating the Constitution.586 Judicial review is a
sanction and agency to enforce the limitations imposed by the Constitution
upon the authority of the organs of the State.
585In Sheela Barse v. State of Maharashtra ((1983) 2 SCC 96), the Supreme Court insisted on fairness to women
in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody,
especially female prisoners. In Veena Sethi v. State of Bihar (AIR 1982 S.C. 1470), the Supreme Court
extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not
merely for those who have the means to fight for their rights and expanded the locus standi principle to help the
poor
586Durga Das Basu, Limited Government and Judicial Review, LexisNexis, (2016) at pages 123-124
446
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This formulation of the limited power of political authority has been recognized
in several judgments of this Court. In State of M P v Thakur Bharat Singh587,
a Constitution Bench held:
“5…Our federal structure is founded on certain fundamental

principles: (1) the sovereignty of the people with limited
Government authority i.e. the Government must be
conducted in accordance with the will of the majority of the
people. The people govern themselves through their
representatives, whereas the official agencies of the
executive Government possess only such powers as have
been conferred upon them by the people; (2) There is a
distribution of powers between the three organs of the
State — legislative, executive and judicial — each organ
having some check direct or indirect on the other; and (3)
the rule of law which includes judicial review of arbitrary
executive action…” (Emphasis supplied)
329 In a decision rendered by a Constitution Bench, in S P Sampath Kumar
v Union of India588, Chief Justice P.N. Bhagwati, in his concurring opinion,
held:
“3…It is a fundamental principle of our constitutional scheme

that every organ of the State, every authority under the
Constitution, derives its power from the Constitution and has
to act within the limits of such power. It is a limited
government which we have under the Constitution and both
the executive and the legislature have to act within the limits
of the power conferred upon them under the Constitution…
The judiciary is constituted the ultimate interpreter of the
Constitution and to it is assigned the delicate task of
determining what is the extent and scope of the power
conferred on each branch of government, what are the
limits on the exercise of such power under the
Constitution and whether any action of any branch
587(1967) 2 SCR 454

588 (1987) 1 SCC 124
447
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transgresses such limits. It is also a basic principle of the

rule of law which permeates every provision of the
Constitution and which forms its very core and essence that
the exercise of power by the executive or any other authority
must not only be conditioned by the Constitution but also be
in accordance with law and it is the judiciary which has to
ensure that the law is observed and there is compliance with
the requirements of law on the part of the executive and other
authorities…”589 (Emphasis supplied)
330 In I R Coelho v State of Tamil Nadu590, a nine judge Bench held that
control over government power ensures that the foundational values of a
democracy are not damaged:
“43…The principle of constitutionalism advocates a check

and balance model of the separation of powers; it requires a
diffusion of powers, necessitating different independent
centres of decision-making… The role of the judiciary is to
protect fundamental rights. A modern democracy is based on
the twin principles of majority rule and the need to protect
fundamental rights. According to Lord Steyn, it is job of the
judiciary to balance the principles ensuring that the
Government on the basis of number does not override
fundamental rights.”
The rule of law is an implied limitation on the authority of any institution in a
constitutional democracy.591
331 Interim orders of courts are an integral element of judicial review.
Interim directions issued on the basis of the prima facie findings in a case are

590 (2007) 2 SCC 1
591 K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1
448
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temporary arrangements till the matter is finally decided. Interim orders ensure
that the cause which is being agitated does not become infructuous before the
final hearing.592 The power of judicial review is not only about the writs issued
by superior courts or the striking down of governmental action. Entrustment of
judicial review is accompanied by a duty to ensure that judicial orders are
complied with. Unless orders are enforced, citizens will lose faith in the
efficacy of judicial review and in the legal system.
It is in the background of the above constitutional position that this Court must
deal with the contention that the interim orders passed by this Court, during
the adjudication of the present dispute were not observed. This Court has
consistently insisted, through its interim orders, on a restraint on the
mandatory use of Aadhaar. It has been submitted that the interim orders have
been violated and several contempt petitions are pending593 before this Court.
332 Prior to the enactment of the Aadhaar Act, the scheme was challenged
before this Court. By its interim order dated 23 September 2013 594, a two
judge Bench directed:
“All the matters require to be heard finally. List all matters for
final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting
the Aadhaar card in spite of the fact that some authority
had issued a circular making it mandatory and when any
person applies to get the Aadhaar Card voluntarily, it
may be checked whether that person is entitled for it
592State of Assam v. Barak Upatyaka DU Karmachari Sanstha, (2009) 5 SCC 694

593Contempt Petition (Civil) No. 144/2014 in WP (C) No. 494/2012; Contempt Petition (Civil) No. 674/2014 in WP
(C) No. 829/2013; Contempt Petition (Civil) No 444/2016 in WP (C) No. 494/2012
594The interim order was in WP (Civil No. 494 of 2012)
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under the law and it should not be given to any illegal

immigrant.” (sic)
This was followed by an order dated 26 November 2013 where the earlier
order was continued:
“After hearing the matter at length, we are of the view that all
the States and Union Territories have to be impleaded as
respondents to give effective directions. In view thereof notice
be issued to all the States and Union Territories through
standing counsel…
Interim order to continue, in the meantime.”
While considering another petition, Unique Identification Authority of India
v Central Bureau of Investigation595, this Court directed in an interim order
dated 24 March 2014:
“In the meanwhile, the present petitioner is restrained from

transferring any biometric information of any person who has
been allotted the Aadhaar number to any other agency
without his consent in writing… More so, no person shall be
deprived of any service for want of Aadhaar number in
case he/she is otherwise eligible/entitled. All the
authorities are directed to modify their
forms/circulars/likes so as to not compulsorily require
the Aadhaar number in order to meet the requirement of
the interim order passed by this Court forthwith… Tag
and list the matter with main matter i.e. WP(C)
No.494/2012.”
On 16 March 2015, while considering WP (Civil) 494 of 2012, this Court noted
a violation of its earlier order dated 23 September 2013 and directed thus:
“The matters require considerable time for hearing… In the

meanwhile, it is brought to our notice that in certain
quarters, Aadhaar identification is being insisted upon by
the various authorities. We do not propose to go into the
specific instances. Since Union of India is represented by
learned Solicitor General and all the States are
represented through their respective counsel, we expect
595 SLP (Crl.) No. 2524/2015
450
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that both the Union of India and States and all their
functionaries should adhere to the Order passed by this
Court on 23rd September, 2013.”
By an order dated 11 August 2015, a three judge Bench referred the issue as
to whether privacy is a fundamental right to a bench of a larger strength of
judges. The following interim directions were issued:
“Having considered the matter, we are of the view that the

balance of interest would be best served, till the matter is
finally decided by a larger Bench if the Union of India or the
UIDAI proceed in the following manner:-
1. The Union of India shall give wide publicity in the electronic
and print media including radio and television networks that it
is not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for
obtaining any benefits otherwise due to a citizen;
3. The Unique Identification Number or the Aadhaar card will
not be used by the respondents for any purpose other than
the PDS Scheme and in particular for the purpose of
distribution of foodgrains, etc. and cooking fuel, such as
kerosene. The Aadhaar card may also be used for the
purpose of the LPG Distribution Scheme;
4. The information about an individual obtained by the Unique
Identification Authority of India while issuing an Aadhaar card
shall not be used for any other purpose, save as above,
except as may be directed by a Court for the purpose of
criminal investigation.”
On 15 October 2015, a Constitution Bench of this Court partially modified the
order dated 11 August 2015, thus:
“3…we are of the view that in paragraph 3 of the Order dated

11.08.2015, if we add, apart from the other two Schemes,
namely, P.D.S. Scheme and the L.P.G. Distribution Scheme,
the Schemes like The Mahatma Gandhi National Rural
Employment Guarantee Scheme (MGNREGS), National
Social Assistance Programme (Old Age Pensions, Widow
Pensions, Disability Pensions), Prime Minister’s Jan Dhan
Yojana (PMJDY) and Employees’ Provident Fund
Organisation (EPFO) for the present, it would not dilute earlier
order passed by this Court. Therefore, we now include the
aforesaid Schemes apart from the other two Schemes that
this Court has permitted in its earlier order dated 11.08.2015.
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4. We impress upon the Union of India that it shall strictly

follow all the earlier orders passed by this Court commencing
from 23.09.2013.
5. We will also make it clear that the Aadhaar card Scheme is
purely voluntary and it cannot be made mandatory till the
matter is finally decided by this Court one way or the other.”
After the Aadhaar Act was enacted there was a challenge in All Bengal
Minority Students Council v Union of India596, to a letter written to the Chief
Secretaries/Administrators of all State Governments/Union territory
Administrations by the Under Secretary to the Government of India, by which
the requirement of the submission of Aadhaar for claiming benefits under a
scheme was made mandatory. By an order dated 14 September 2016, a two
judge Bench directed as follows:
“…we stay the operation and implementation of letters dated

14.07.2006 (i.e. Annexure P-5, P-6 and P-7) for Pre-Matric
Scholarship Scheme, Post-Matric Scholarship Scheme and
Merit-cum-Means Scholarship Scheme to the extent they
have made submission of Aadhaar mandatory and direct the
Ministry of Electronics and Information Technology,
Government of India i.e. Respondent No.2 to remove
Aadhaar number as a mandatory condition for student
Registration form at the National Scholarship Portal of
Ministry of Electronics and Information Technology,
Government of India at the website
http://scholarships.gov.in/newStudentRegFrm and stay the
implementation of clause (c) of the 'Important Instructions' of
the advertisement dated 20.08.2016 for the Pre-Matric
Scholarship Scheme, Post-Matric Scholarship Scheme and
Merit-cum-Means Scholarship Scheme, during the pendency
of this writ petition.”
It has been submitted that the notifications and circulars, which make the
application of Aadhaar mandatory, are contrary to the interim orders passed
by this Court. It has been contended that the Respondents have flouted the
596 WP (Civil) No. 686/2016
452
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most elementary norms of good governance and have disrespected judicial
orders. This contention requires serious consideration.
333 The legislature cannot simply declare that the judgment of a court is
invalid or that it stands nullified. In Kalpana Mehta, a Constitution Bench of
this Court held:
“255…If the legislature were permitted to do so, it would

travel beyond the boundaries of constitutional entrustment.
While the separation of powers prevents the legislature from
issuing a mere declaration that a judgment is erroneous or
invalid, the law-making body is entitled to enact a law which
remedies the defects which have been pointed out by the
court. Enactment of a law which takes away the basis of the
judgment (as opposed to merely invalidating it) is permissible
and does not constitute a violation of the separation doctrine.
That indeed is the basis on which validating legislation is
permitted.”597
Where a final judgment or order of this Court is sought to be undone by an Act
of Parliament, it is imperative that the basis of the Court’s judgment or order is
removed. It has been held by this Court in Bhubaneshwar Singh v Union of
India598:
“11. From time to time controversy has arisen as to whether the

effect of judicial pronouncements of the High Court or the
Supreme Court can be wiped out by amending the legislation
with retrospective effect. Many such Amending Acts are called
Validating Acts, validating the action taken under the particular
enactments by removing the defect in the statute
retrospectively because of which the statute or the part of it had
been declared ultra vires. Such exercise has been held by this
Court as not to amount to encroachment on the judicial power
of the courts. The exercise of rendering ineffective the
judgments or orders of competent courts by changing the
very basis by legislation is a well-known device of
validating legislation. This Court has repeatedly pointed out

598 (1994) 6 SCC 77
453
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that such validating legislation which removes the cause of the

invalidity cannot be considered to be an encroachment on
judicial power. At the same time, any action in exercise of
the power under any enactment which has been declared
to be invalid by a court cannot be made valid by a
Validating Act by merely saying so unless the defect which
has been pointed out by the court is removed with
retrospective effect. The validating legislation must remove
the cause of invalidity. Till such defect or the lack of
authority pointed out by the court under a statute is
removed by the subsequent enactment with retrospective
effect, the binding nature of the judgment of the court
cannot be ignored.”599 (Emphasis supplied)
When the Aadhaar Act was notified on 25 March 2016, the interim directions
issued by this court were in operation. Was it then open to government to
launch upon a virtual spree of administrative notifications making Aadhaar a
mandatory requirement of virtually every aspect of human existence from birth
until death?
The position which the Union government has adopted before this court is
simply this: interim directions were issued by this court when the Aadhaar
project was governed by executive instructions. Once a law was enacted by
Parliament, a statutory authorisation was brought into existence to enable
government to issue administrative instructions. Hence, compliance with the
interim orders stands obviated upon the enactment of the law.
334 This defence of government can be scrutinized at two levels – the first
as a matter of statutory interpretation and the second, on a broader
foundation which engages the judicial power of this court. As a matter of

599 Ibid at pages 83-84
454
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statutory interpretation, the Aadhaar Act did not, as it could not have, merely
nullified the interim orders of this court. Section 59 has no provision which
gives it overriding effect notwithstanding any judgment, decree or order of a
court. The interim orders do not stand superseded. Apart from approaching
the issue purely as a matter of statutory interpretation, there are broader
concerns which arise from the manner in which the authorities proceeded,
oblivious to the interim directions. Interim directions were issued by this court
in a situation where a constitutional challenge was addressed in a batch of
petitions on the ground that the Aadhaar project was offensive to fundamental
rights, including the right to privacy. So significant was the nature of the
challenge that it was referred initially to a Constitution Bench and thereafter,
to a bench of nine-judges of this Court for resolving the question as to
whether privacy is a protected fundamental right. The collection and storage
of biometric data and its use for the purpose of authentication is the subject of
a constitutional challenge. Noting the nature of the challenge and after
considering the serious issues which have arisen in the case, successive
benches of this Court issued a series of interim directions. The purport of
those directions is that Aadhaar could not be made mandatory except for
specified schemes which were listed by the court. Moreover, in the context of
the serious grievance of financial exclusion, the court directed that no
individual should be excluded from the receipt of welfare entitlements, such as
food-grains, for want of an Aadhaar number. The constitutional challenge was
not obviated merely on the enactment of the Aadhaar Act. The law gave a
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statutory character to a project which since 2009 was possessed of an
administrative or executive nature. The constitutional challenge to some of the
basic features underlying the collection of biometric data still remained to be
addressed by the court. The proceedings before this Court are testimony to
the fact that the issue of constitutionality was indeed live. That being the
position, the issuance of a spate of administrative notifications is in defiance
of the interim orders passed by this Court. Judicial orders, be they interim or
final, cannot simply be wished away. If governments or citizens were allowed
to ignore judicially enforceable directions, that would negate the basis of the
rule of law. Both propriety and constitutional duty required Union government
to move this Court after the enactment of the Aadhaar Act for variation of the
interim orders. Such an application would have required this Court to weigh
on the one hand the subsequent development of the law being passed
(something which would be relied upon by government) with the constitutional
concerns over the entire biometric project. It is not as if that the mere
enactment of the law put an end to the constitutional challenge. The existence
of law (post 2016) is only one aspect to be considered in deciding the interim
arrangement which would hold the field when the constitutional challenge was
pending adjudication before this Court. Institutions of governance are bound
by a sense of constitutional morality which requires them to abide by judicial
orders. What seems to emerge from the course of action which has been
followed in the present case by government is a perception that judicial
directions can be ignored on a supposed construction of the statute. Besides
456
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the fact that this construction is erroneous in law, it is above all, the
fundamental duty of this Court to ensure that its orders are not treated with
disdain. If we were not to enforce a punctilious compliance with our own
directions by government, that would ring a death – knell of the institutional
position of the Supreme Court. If governments were free to ignore judicial
directions at will, could a different yardstick be applied to citizens? The
obligation to comply with judicial orders is universal to our polity and admits of
no exception. Confronted with a brazen disregard of our interim orders, I
believe that we have no course open except to stand firm.
335 The power of judicial review conferred on an independent judiciary
requires that other organs of the State respect the authority of Courts. This
Court in P Sambamurthy v State of Andhra Pradesh600, while highlighting
the importance of judicial review in the rule of law regime, held thus:
“4… it is a basic principle of the rule of law that the exercise

of power by the executive or any other authority must not only
be conditioned by the Constitution but must also be in
accordance with law and the power of judicial review is
conferred by the Constitution with view to ensuring that the
law is observed and there is compliance with the requirement
of law on the part of the executive and other authorities. It is
through the power of judicial review conferred on an
independent institutional authority such as the High Court that
the rule of law is maintained and every organ of the State is
kept within the limits- of the law. Now if the exercise of the
power of judicial review can be set at naught by the State
Government by overriding the decision given against it, it
would sound, the death-knell of the rule of law. The rule
of law would cease to have any meaning, because then it
would be open to the State Government to defy the law
and yet get away with it.”601 (Emphasis supplied)
600 (1987) 1 SCC 362

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336 A Bench of two judges in Re: Arundhati Roy602 held that for the courts
to protect the rule of law, it is necessary that the dignity and authority of the
courts have to be respected and protected. It was held:
“‘Rule of Law’ is the basic rule of governance of any civilised

democratic policy. Our Constitutional scheme is based upon
the concept of Rule of Law which we have adopted and given
to ourselves. Everyone, whether individually or collectively is
unquestionably under the supremacy of law. Whoever the
person may be, however high he or she is, no-one is above
the law notwithstanding how powerful and how rich he or she
may be. For achieving the establishment of the rule of
law, the Constitution has assigned the special task to the
judiciary in the country. It is only through the courts that
the rule of law unfolds its contents and establishes its
concept. For the judiciary to perform its duties and
functions effectively and true to the spirit with which it is
sacredly entrusted, the dignity and authority of the
courts have to be respected and protected at all costs.”603
(Emphasis supplied)
The accountability of power, as a component of the rule of law, requires that
the power vested in any organ of the State, and its agents, can only be used
for promotion of constitutional values and vision.604 Governmental authority
may only be exercised in accordance with written laws which are adopted
though an established procedure. No action of the legislature or the executive
can undermine the authority of the courts, except according to established
principles. Disrespect of court orders results in impairment of the dignity of the
courts.
602 (2002) 3 SCC 343

604 Nandini Sundar v State of Chhattisgarh, (2011) 7 SCC 547
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337 Constitutional morality requires a government not to act in a manner
which would become violative of the rule of law.605 Constitutional morality
requires that the orders of this Court be complied with, faithfully. This Court is
the ultimate custodian of the Constitution. The limits set by the Constitution
are enforced by this Court. Constitutional morality requires that the faith of the
citizens in the constitutional courts of the country be maintained. The
importance of the existence of courts in the eyes of citizens has been
highlighted in Harper Lee’s classic “To Kill a Mockingbird”:
“But there is one way in this country in which all men are
created equal—there is one human institution that makes a
pauper the equal of a Rockefeller, the stupid man the equal of
an Einstein, and the ignorant man the equal of any college
president. That institution, gentlemen, is a court. It can be
the Supreme Court of the United States or the humblest J.P.
court in the land, or this honorable court which you serve. Our
courts have their faults, as does any human institution, but in
this country our courts are the great levelers, and in our
courts all men are created equal.” (Emphasis supplied)
Many citizens, although aggrieved, are not in a condition to reach the highest
Court. The poorest and socially neglected lack resources and awareness to
reach this Court. Their grievances remain unaddressed. Such individuals
suffer injury each day without remedy. Disobedience of the interim orders of
this Court and its institutional authority, in the present case, has made a
societal impact. It has also resulted in denial of subsidies and other benefits
essential to the existence of a common citizen. Constitutional morality
therefore needs to be enforced as a valid response to these arbitrary acts.
Non-compliance of the interim orders of this Court is contrary to constitutional
605 Manoj Narula v Union of India, (2014) 9 SCC 1
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morality. Constitutional morality, as an essential component of the rule of law,
must neutralise the excesses of power by the executive. The brazen manner
in which notifications have been issued making Aadhaar mandatory, despite
the interim order of this Court is a matter of serious concern. Deference to the
institutional authority of the Supreme Court is integral to the values which the
Constitution adopts. The postulate of a limited government is enforced by the
role of the Supreme Court in protecting the liberties of citizens and holding
government accountable for its transgressions. The authority of this Court is
crucial to maintaining the fine balances of power on which democracy thrives
and survives. The orders of the Court are not recommendatory – they are
binding directions of a constitutional adjudicator. Dilution of the institutional
prestige of this Court can only be at the cost of endangering the freedom of
over a billion citizens which judicial review seeks to safeguard.
338 Courts – as it is often said- have neither the power of the purse nor the
sword. Our authority lies in constitutional legitimacy as much as in public
confidence. Combined together they impart moral and institutional authority to
the Court. That sense of legitimacy and duty have required me to assert once
again the norms of a written Constitution and the rule of law. This judgment
has taken a much wider postulation. Having held the Aadhaar Act prior to its
passage not to be a Money Bill, I have delved into the merits of the
constitutional challenge for two reasons:
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i. Merits have been argued in considerable detail both by petitioners and the
Union of India; and
ii. As a logical consequence of the view that the Aadhaar legislation is not a
Money Bill, it would be open to the government to reintroduce fresh
legislation. The principles governing a law regulating the right to data
protection and informational privacy have hence been delineated.
L Conclusion
339 The present dispute has required this Court to analyze the provisions of
the Aadhaar Act and Regulations, along with the framework as it existed prior
to the enactment of the Act, through the prism of the Constitution and the
precedents of this Court. My conclusions are outlined below:
(1) In order to deal with the challenge that the Aadhaar Act should not have
been passed as a Money Bill, this Court was required to adjudicate
whether the decision of the Speaker of the Lok Sabha to certify a Bill as a
Money Bill, can be subject to judicial review. The judgment has analyzed
the scope of the finality attributed to the Speaker’s decision, by looking at
the history of Article 110(3) of the Constitution, by comparing it with the
comparative constitutional practices which accord finality to the Speaker’s
decision, by analyzing other constitutional provisions which use the phrase
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“shall be final”, and by examining the protection granted to parliamentary
proceedings under Article 122. This judgment holds that:
(a) The phrase “shall be final” used under Article 110(3) aims at avoiding
any controversy on the issue as to whether a Bill is a Money Bill, with
respect to the Rajya Sabha and before the President. The language
used in Article 110(3) does not exclude judicial review of the Speaker’s
decision. This also applies to Article 199(3).
(b) The immunity from judicial review provided to parliamentary
proceedings under Article 122 is limited to instances involving
“irregularity of procedure”. The decisions of this Court in Special
Reference, Ramdas Athawale and Raja Ram Pal hold that the validity
of proceedings in Parliament or a State Legislature can be subject to
judicial review when there is a substantive illegality or a constitutional
violation. These judgments make it clear that the decision of the
Speaker is subject to judicial review, if it suffers from illegality or from a
violation of constitutional provisions.
(c) Article 255 has no relation with the decision of the Speaker on whether
a Bill is a Money Bill. The three Judge Bench decision in Mohd Saeed
Siddiqui erroneously interpreted the judgment in Mangalore Beedi to
apply Articles 212 (or Article 122) and 255 to refrain from questioning
the conduct of the Speaker (under Article 199 or 110). The two judge
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Bench decision in Yogendra Kumar followed Mohd Saeed Siddiqui.
The correct position of law is that the decision of the Speaker under
Articles 110(3) and 199(3) is not immune from judicial review. The
decisions in Mohd Saeed Siddiqui and Yogendra Kumar are
accordingly overruled.
(d) The existence of and the role of the Rajya Sabha, as an institution of
federal bicameralism in the Indian Parliament, constitutes a part of the
basic structure of the Constitution. The decision of the Speaker of the
Lok Sabha to certify a Bill as a Money Bill has a direct impact on the
role of the Rajya Sabha, since the latter has a limited role in the passing
of a Money Bill. A decision of the Speaker of the Lok Sabha to declare
an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha.
The power of the Speaker cannot be exercised arbitrarily in violation of
constitutional norms and values, as it damages the essence of federal
bicameralism, which is a part of the basic structure of the Constitution.
Judicial review of the Speaker’s decision, on whether a Bill is a Money
Bill, is therefore necessary to protect the basic structure of the
Constitution.
(2) To be certified a Money Bill, a Bill must contain “only provisions” dealing
with every or any one of the matters set out in sub-clauses (a) to (g) of
Article 110(1). A Bill, which has both provisions which fall within sub-
clauses (a) to (g) of Article 110(1) and provisions which fall outside their
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scope, will not qualify to be a Money Bill. Thus, when a Bill which has
been passed as a Money Bill has certain provisions which fall beyond the
scope of sub-clauses (a) to (g) of Article 110(1), these provisions cannot
be severed. If the bill was not a Money Bill, the role of the Rajya Sabha in
its legislative passage could not have been denuded. The debasement of
a constitutional institution cannot be countenanced by the Court.
Democracy survives when constitutional institutions are vibrant.
(3) The Aadhaar Act creates a statutory framework for obtaining a unique
identity number, which is capable of being used for “any” purpose, among
which availing benefits, subsidies and services, for which expenses are
incurred from the Consolidated Fund of India, is just one purpose provided
under Section 7. Clause (e) of Article 110(1) requires that a Money Bill
must deal with the declaring of any expenditure to be expenditure charged
on the Consolidated Fund of India (or increasing the amount of the
expenditure). Section 7 fails to fulfil this requirement. Section 7 does not
declare the expenditure incurred to be a charge on the Consolidated
Fund. It only provides that in the case of such services, benefits or
subsidies, Aadhaar can be made mandatory to avail of them. Moreover,
provisions other than Section 7 of the Act deal with several aspects
relating to the Aadhaar numbers: enrolment on the basis of demographic
and biometric information, generation of Aadhaar numbers, obtaining the
consent of individuals before collecting their individual information,
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creation of a statutory authority to implement and supervise the process,
protection of information collected during the process, disclosure of
information in certain circumstances, creation of offences and penalties for
disclosure or loss of information, and the use of the Aadhaar number for
“any purpose”. All these provisions of the Aadhaar Act do not lie within the
scope of sub-clauses (a) to (g) of Article 110(1). Hence, in the alternate,
even if it is held that Section 7 bears a nexus to the expenditure incurred
from the Consolidated Fund of India, the other provisions of the Act fail to
fall within the domain of Article 110(1). Thus, the Aadhaar Act is declared
unconstitutional for failing to meet the necessary requirements to have
been certified as a Money Bill under Article 110(1).
(4) The argument that the Aadhaar Act is in pith and substance a Money Bill,
with its main objective being the delivery of subsidies, benefits and
services flowing out of the Consolidated Fund of India and that the other
provisions are ancillary to the main purpose of the Act also holds no
ground, since the doctrine of pith and substance is used to examine
whether the legislature has the competence to enact a law with regard to
any of the three Lists in the Seventh Schedule of the Constitution. The
doctrine cannot be invoked to declare whether a Bill satisfies the
requirements set out in Article 110 of the Constitution to be certified a
Money Bill. The argument of the Union of India misses the point that a Bill
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can be certified as a Money Bill “only” if it deals with all or any of the
matters contained in clauses (a) to (g) of Article 110(1).
(5) Having held that the Aadhaar Act is unconstitutional for having been
passed as a Money Bill this judgment has also analysed the merits of the
other constitutional challenges to the legislation as well as to the
framework of the project before the law was enacted.
(6) The architecture of the Aadhaar Act seeks to create a unique identity for
residents on the basis of their demographic and biometric information. The
Act sets up a process of identification by which the unique identity
assigned to each individual is verified with the demographic and biometric
information pertaining to that individual which is stored in a centralised
repository of data. Identification of beneficiaries is integral and essential to
the fulfilment of social welfare schemes and programmes, which are a part
of the State’s attempts to ensure that its citizens have access to basic
human facilities. This judgment accepts the contention of the Union of
India that there is a legitimate state aim in maintaining a system of
identification to ensure that the welfare benefits provided by the State
reach the beneficiaries who are entitled, without diversion.
(7) The Aadhaar programme involves application of biometric technology,
which uses an individual’s biometric data as the basis of authentication or
identification and is therefore intimately connected to the individual. While
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citizens have privacy interests in personal or private information collected
about them, the unique nature of biometric data distinguishes it from other
personal data, compounding concerns regarding privacy protections
safeguarding biometric information. Once a biometric system is
compromised, it is compromised forever. Therefore, it is imperative that
concerns about protecting privacy must be addressed while developing a
biometric system. Adequate norms must be laid down for each step from
the collection to retention of biometric data. At the time of collection,
individuals must be informed about the collection procedure, the intended
purpose of the collection, the reason why the particular data set is
requested and who will have access to their data. Additionally, the
retention period must be justified and individuals must be given the right to
access, correct and delete their data at any point in time, a procedure
familiar to an opt-out option.
(8) Prior to the enactment of the Aadhaar Act, no mandatory obligation was
imposed upon the Registrars or the enrolling agencies, to obtain informed
consent from residents before recording their biometric data, to inform
them how the biometric data would be stored and used and about the
existence of adequate safeguards to secure the data. Moreover, prior to
the enactment of the Act, while UIDAI had itself contemplated that an
identity theft could occur at the time of enrollment for Aadhaar cards, it
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had no solution to the possible harms which could result after the identity
theft of a person.
(9) The Regulations framed subsequently under the Aadhaar Act also do not
provide a robust mechanism on how informed consent is to be obtained
from residents before collecting their biometric data. The Aadhaar Act and
Regulations are bereft of the procedure through which an individual can
access information related to his or her authentication record. The
Aadhaar Act clearly has no defined options that should be made available
to the Aadhaar number holders in case they do not wish to submit identity
information during authentication, nor do the regulations specify the
procedure to be followed in case the Aadhaar number holder does not
provide consent for authentication.
(10) Sections 29(1) and (2) of the Act create a distinction between two classes
of information (core biometric information and identity information), which
are integral to individual identity and require equal protection. Section
29(4) suffers from overbreadth as it gives wide discretionary power to
UIDAI to publish, display or post core biometric information of an individual
for purposes specified by the regulations.
(11) Sections 2(g), (j), (k) and (t) suffer from overbreadth, as these can lead to
an invasive collection of biological attributes. These provisions give
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discretionary power to UIDAI to define the scope of biometric and
demographic information and empower it to expand on the nature of
information already collected at the time of enrollment, to the extent of
also collecting any “such other biological attributes” that it may deem fit.
(12) There is no clarity on how an individual is supposed to update his/her
biometric information, in case the biometric information mismatches with
the data stored in CIDR. The proviso to Section 28(5) of the Aadhaar Act,
which disallows an individual access to the biometric information that
forms the core of his or her unique ID, is violative of a fundamental
principle that ownership of an individual’s data must at all times vest with
the individual. UIDAI is also provided wide powers in relation to removing
the biometric locking of residents. With this analysis of the measures
taken by the Government of India prior to the enactment of the Aadhaar
Act as well as a detailed analysis of the provisions under the Aadhaar Act,
2016 and supporting Regulations made under it, this judgment concludes
that the Aadhaar programme violates essential norms pertaining to
informational privacy, self-determination and data protection.
(13) The State is under a constitutional obligation to safeguard the dignity of
its citizens. Biometric technology which is the core of the Aadhaar
programme is probabilistic in nature, leading to authentication failures.
These authentication failures have led to the denial of rights and legal
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entitlements. The Aadhaar project has failed to account for and remedy
the flaws in its framework and design which has led to serious instances
of exclusion of eligible beneficiaries as demonstrated by the official
figures from Government records including the Economic Survey of India
2016-17 and research studies. Dignity and the rights of individuals cannot
be made to depend on algorithms or probabilities. Constitutional
guarantees cannot be subject to the vicissitudes of technology. Denial of
benefits arising out of any social security scheme which promotes socio-
economic rights of citizens is violative of human dignity and impermissible
under our constitutional scheme.
(14) The violations of fundamental rights resulting from the Aadhaar scheme
were tested on the touchstone of proportionality. The measures adopted
by the respondents fail to satisfy the test of necessity and proportionality
for the following reasons:
(a) Under the Aadhaar project, requesting entities can hold the identity
information of individuals, for a temporary period. It was admitted by
UIDAI that AUAs may store additional information according to their
requirement to secure their system. ASAs have also been permitted to
store logs of authentication transactions for a specific time period. It has
been admitted by UIDAI that it gets the AUA code, ASA code, unique
device code and the registered device code used for authentication,
and that UIDAI would know from which device the authentication took
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place and through which AUA/ASA. Under the Regulations, UIDAI
further stores the authentication transaction data. This is in violation of
widely recognized data minimisation principles which mandate that data
collectors and processors delete personal data records when the
purpose for which it has been collected is fulfilled. Moreover, using the
meta-data related to the transaction, the location of the authentication
can easily be traced using the IP address, which impacts upon the
privacy of the individual.
(b) From the verification log, it is possible to locate the places of
transactions by an individual in the past five years. It is also possible
through the Aadhaar database to track the current location of an
individual, even without the verification log. The architecture of Aadhaar
poses a risk of potential surveillance activities through the Aadhaar
database. Any leakage in the verification log poses an additional risk of
an individual’s biometric data being vulnerable to unauthorised
exploitation by third parties.
(c) The biometric database in the CIDR is accessible to third-party vendors
providing biometric search and de-duplication algorithms, since neither
the Central Government nor UIDAI have the source code for the de-
duplication technology which is at the heart of the programme. The
source code belongs to a foreign corporation. UIDAI is merely a
licensee. Prior to the enactment of the Aadhaar Act, without the consent
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of individual citizens, UIDAI contracted with L-1 Identity Solutions (the
foreign entity which provided the source code for biometric storage) to
provide to it any personal information related to any resident of India.
This is contrary to the basic requirement that an individual has the right
to protect herself by maintaining control over personal information. The
protection of the data of 1.2 billion citizens is a question of national
security and cannot be subjected to the mere terms and conditions of a
normal contract.
(d) Before the enactment of the Aadhaar Act, MOUs signed between UIDAI
and Registrars were not contracts within the purview of Article 299 of
the Constitution, and therefore, do not cover the acts done by the
private entities engaged by the Registrars for enrolment. Since there is
no privity of contract between UIDAI and the Enrolling agencies, the
activities of the private parties engaged in the process of enrolment
before the enactment of the Aadhaar Act have no statutory or legal
backing.
(e) Under the Aadhaar architecture, UIDAI is the sole authority which
carries out all administrative, adjudicatory, investigative, and monitoring
functions of the project. While the Act confers these functions on UIDAI,
it does not place any institutional accountability upon UIDAI to protect
the database of citizens’ personal information. UIDAI also takes no
institutional responsibility for verifying whether the data entered and
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stored in the CIDR is correct and authentic. The task has been
delegated to the enrolment agency or the Registrar. Verification of data
being entered in the CIDR is a highly sensitive task for which the UIDAI
ought to have taken responsibility. The Aadhaar Act is also silent on the
liability of UIDAI and its personnel in case of their non-compliance of
the provisions of the Act or the regulations.
(f) Section 47 of the Act violates citizens’ right to seek remedies. Under
Section 47(1), a court can take cognizance of an offence punishable
under the Act only on a complaint made by UIDAI or any officer or
person authorised by it. Section 47 is arbitrary as it fails to provide a
mechanism to individuals to seek efficacious remedies for violation of
their right to privacy. Further, Section 23(2)(s) of the Act requires UIDAI
to establish a grievance redressal mechanism. Making the authority
which is administering a project, also responsible for providing a
grievance redressal mechanism for grievances arising from the project
severely compromises the independence of the grievance redressal
body.
(g) While the Act creates a regime of criminal offences and penalties, the
absence of an independent regulatory framework renders the Act
largely ineffective in dealing with data violations. The architecture of
Aadhaar ought to have, but has failed to embody within the law the
establishment of an independent monitoring authority (with a hierarchy

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of regulators), along with the broad principles for data protection. This
compromise in the independence of the grievance redressal body
impacts upon the possibility and quality of justice being delivered to
citizens. In the absence of an independent regulatory and monitoring
framework which provides robust safeguards for data protection, the
Aadhaar Act cannot pass muster against a challenge on the ground of
reasonableness under Article 14.
(h) No substantive provisions, such as those providing data minimization,
have been laid down as guiding principles for the oversight mechanism
provided under Section 33(2), which permits disclosure of identity
information and authentication records in the interest of national
security.
(i) Allowing private entities to use Aadhaar numbers, under Section 57, will
lead to commercial exploitation of the personal data of individuals
without consent and could also lead to individual profiling. Profiling
could be used to predict the emergence of future choices and
preferences of individuals. These preferences could also be used to
influence the decision making of the electorate in choosing candidates
for electoral offices. This is contrary to privacy protection norms. Data
cannot be used for any purpose other than those that have been
approved. While developing an identification system of the magnitude
of Aadhaar, security concerns relating to the data of 1.2 billion citizens
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ought to be addressed. These issues have not been dealt with by the
Aadhaar Act. By failing to protect the constitutional rights of citizens,
Section 57 violates Articles 14 and 21.
(j) Section 57 is susceptible to be applied to permit commercial
exploitation of the data of individuals or to affect their behavioural
patterns. Section 57 cannot pass constitutional muster. Since it is
manifestly arbitrary, it suffers from overbreadth and violates Article 14.
(k) Section 7 suffers from overbreadth since the broad definitions of the
expressions ‘services and ‘benefits’ enable the government to regulate
almost every facet of its engagement with citizens under the Aadhaar
platform. If the requirement of Aadhaar is made mandatory for every
benefit or service which the government provides, it is impossible to live
in contemporary India without Aadhaar. The inclusion of services and
benefits in Section 7 is a pre-cursor to the kind of function creep which
is inconsistent with the right to informational self-determination. Section
7 is therefore arbitrary and violative of Article 14 in relation to the
inclusion of services and benefits as defined.
(l) The legitimate aim of the State can be fulfilled by adopting less intrusive
measures as opposed to the mandatory enforcement of the Aadhaar
scheme as the sole repository of identification. The State has failed to
demonstrate that a less intrusive measure other than biometric
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authentication would not subserve its purposes. That the state has
been able to insist on an adherence to the Aadhaar scheme without
exception is a result of the overbreadth of Section 7.
(m) When Aadhaar is seeded into every database, it becomes a bridge
across discreet data silos, which allows anyone with access to this
information to re-construct a profile of an individual’s life. This is
contrary to the right to privacy and poses severe threats due to potential
surveillance.
(n) One right cannot be taken away at the behest of the other. The State
has failed to satisfy this Court that the targeted delivery of subsidies
which animate the right to life entails a necessary sacrifice of the right
to individual autonomy, data protection and dignity when both these
rights are protected by the Constitution.
(15) Section 59 of the Aadhaar Act seeks to retrospectively validate the
actions of the Central Government done prior to the Aadhaar Act
pursuant to Notifications dated 28 January 2009. and 12 September
2015. Section 59 does not validate actions of the state governments or of
private entities. Moreover, the notification of 2009 did not authorise the
collection of biometric data. Consequently, the validation of actions taken
under the 2009 notification by Section 59 does not save the collection of
biometric data prior to the enforcement of the Act. While Parliament
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possesses the competence to enact a validating law, it must cure the
cause of infirmity or invalidity. Section 59 fails to cure the cause of
invalidity prior to the enactment of the Aadhaar Act. The absence of a
legislative framework for the Aadhaar project between 2009 and 2016 left
the biometric data of millions of Indian citizens bereft of the kind of
protection which must be provided to comprehensively protect and
enforce the right to privacy. Section 59 therefore fails to meet the test of
a validating law since the complete absence of a regulatory framework
and safeguards cannot be cured merely by validating what was done
under the notifications of 2009 and 2016.
(16) The decision in Puttaswamy recognised that revenue constitutes a
legitimate state aim in the three-pronged test of proportionality. However,
the existence of a legitimate aim is insufficient to uphold the validity of the
law, which must also meet the other parameters of proportionality spelt out
in Puttaswamy.
(17) The seeding of Aadhaar with PAN cards depends on the constitutional
validity of the Aadhaar legislation itself. Section 139AA of the Income Tax
Act 1962 is based on the premise that the Aadhaar Act itself is a valid
legislation. Since the Aadhaar Act itself is now held to be unconstitutional
for having been enacted as a Money Bill and on the touchstone of
proportionality, the seeding of Aadhaar to PAN under Article 139AA does
not stand independently.
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(18) The 2017 amendments to the PMLA Rules fail to satisfy the test of
proportionality. The imposition of a uniform requirement of linking Aadhaar
numbers with all account based relationships proceeds on the
presumption that all existing account holders as well as every individual
who seeks to open an account in future is a potential money-launderer. No
distinction has been made in the degree of imposition based on the client,
the nature of the business relationship, the nature and value of the
transactions or the actual possibility of terrorism and money- laundering.
The rules also fail to make a distinction between opening an account and
operating an account. Moreover, the consequences of the failure to submit
an Aadhaar number are draconian. In their present form, the rules are
clearly disproportionate and excessive. We clarify that this holding would
not preclude the Union Government in the exercise of its rule making
power and the Reserve Bank of India as the regulator to re-design the
requirements in a manner that would ensure due fulfillment of the object of
preventing money-laundering, subject to compliance with the principles of
proportionality as outlined in this judgment.
(19) Mobile phones have become a ubiquitous feature of the lives of people
and the linking of Aadhaar numbers with SIM cards and the requirement of
e-KYC authentication of mobile subscribers must necessarily be viewed in
this light. Applying the proportionality test, the legitimate aim of subscriber
verification, has to be balanced against the countervailing requirements of
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preserving the integrity of biometric data and the privacy of mobile phone
subscribers. Mobile phones are a storehouse of personal data and reflect
upon individual preferences, lifestyle and choices. The conflation of
biometric information with SIM cards poses grave threats to individual
privacy, liberty and autonomy. Having due regard to the test of
proportionality which has been propounded in Puttaswamy and as
elaborated in this judgment, the decision to link Aadhaar numbers with
mobile SIM cards is neither valid nor constitutional. The mere existence of
a legitimate state aim will not justify the disproportionate means which
have been adopted in the present case. The biometric information and
Aadhaar details collected by Telecom Service Providers shall be deleted
forthwith and no use of the said information or details shall be made by
TSPs or any agency or person or their behalf.
(20) Defiance of judicial orders (both interim and final) be it by the government
or by citizens negates the basis of the rule of law. Both propriety and
constitutional duty required the Union government to move this Court after
the enactment of the Aadhaar Act for variation of this Court’s interim
orders. Institutions of governance are bound by a sense of constitutional
morality which requires them to abide by judicial orders.
(21) Identity is necessarily a plural concept. The Constitution also recognizes
a multitude of identities through the plethora of rights that it safeguards.
479
PART L
The technology deployed in the Aadhaar scheme reduces different
constitutional identities into a single identity of a 12-digit number and
infringes the right of an individual to identify herself/himself through a
chosen means. Aadhaar is about identification and is an instrument which
facilitates a proof of identity. It must not be allowed to obliterate
constitutional identity.
(22) The entire Aadhaar programme, since 2009, suffers from constitutional
infirmities and violations of fundamental rights. The enactment of the
Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the
Rules and Regulations framed under it, and the framework prior to the
enactment of the Act are unconstitutional.
(23) To enable the government to initiate steps for ensuring conformity with
this judgment, it is directed under Article 142 that the existing data which
has been collected shall not be destroyed for a period of one year. During
this period, the data shall not be used for any purpose whatsoever. At the
end of one year, if no fresh legislation has been enacted by the Union
government in conformity with the principles which have been enunciated
in this judgment, the data shall be destroyed.
Creating strong privacy protection laws and instilling safeguards may address
or at the very least assuage some of the concerns associated with the
Aadhaar scheme which severely impairs informational self-determination,
480
PART L
individual privacy, dignity and autonomy. In order to uphold the democratic
values of the Constitution, the government needs to address the concerns
highlighted in this judgment which would provide a strong foundation for digital
initiatives, which are imminent in today’s digital age. However, in its current
form, the Aadhaar framework does not sufficiently assuage the concerns that
have arisen from the operation of the project which have been discussed in
this judgment.
……....................................................J
[Dr Dhananjaya Y Chandrachud]
New Delhi;
September 26, 2018.
481

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IN THE SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) NO 494 OF 2012

JUSTICE K S PUTTASWAMY (RETD) & ANR ...PETITIONERS

UNION OF INDIA & ORS ...RESPONDENTS

T C (C) NO 151 OF 2013

T C (C) NO 152 OF 2013

W P (C) NO 833 OF 2013

W P (C) NO 829 OF 2013

T P (C) NO 1797 OF 2013

W P (C) NO 932 OF 2013

CONMT. PET. (C) NO 144 OF 2014

T P (C) NO 313 OF 2014

T P (C) NO 312 OF 2014

SLP (CRL) NO 2524 OF 2014

W P (C) NO 220 OF 2015

CONMT. PET. (C) NO 674 OF 2015 in W P (C) NO 829 OF 2013

T P (C) NO 921 OF 2015

CONMT. PET. (C) NO 470 OF 2015

W P (C) NO 231 OF 2016

CONMT. PET. (C) NO 444 OF 2016

CONMT. PET. (C) NO 608 OF 2016

W P (C) NO 797 OF 2016

CONMT. PET. (C) NO 844 OF 2017

W P (C) NO 372 OF 2017

W P (C) NO 841 OF 2017

W P (C) NO 1058 OF 2017

W P (C) NO 966 OF 2017

W P (C) NO 1014 OF 2017

W P (C) NO 1002 OF 2017

W P (C) NO 1056 OF 2017

CONMT. PET. (C) NO 34 OF 2018 in W P (C) NO 1014 OF 2017

A Introduction: technology, governance and freedom

B The Puttaswamy1 principles

B.I Origins: privacy as a natural right

C.I Petitioners’ submissions

D Architecture of Aadhaar: analysis of the legal framework

E Passage of Aadhaar Act as a Money Bill

E.I Judicial Review of the Speaker’s Decision

F Biometrics, Privacy and Aadhaar

F.I Increased use of biometric technology

G Legitimate state aim

G.I Directive Principles

H.I Harmonising conflicting rights

I Money laundering rules

K Rule of law and violation of interim orders

A Introduction: technology, governance and freedom

1 Technology and biometrics are recent entrants to litigation. Individually,

each presents specific claims: of technology as the great enabler; and of

biometrics as the unique identifier. As recombinant elements, they create as it

were, new genetic material. Combined together, they present unforeseen

law evolved instruments of governance in incremental stages. They were

lapse into governance on paper. Technology has become a universal

language which straddles culture and language. It confronts institutions of

governance with new problems. Many of them have no ready answers.

2 Technology questions the assumptions which underlie our processes of

which preserves the sanctity of the individual.

3 In understanding the interface between governance, technology and

commitment to limited government. Technology confronts the future of

4 Granville Austin, the eminent scholar of the Indian Constitution had

prescient comments on the philosophy of the Indian Constitution. He found it

“The Constitution…may be summarized as having three

equilibrium between them preserves the equilibrium of the Constitution.